Vanstone v Clark [2005] FCAFC 189 (6 September 2005)

Last Updated: 6 September 2005

FEDERAL COURT OF AUSTRALIA

Vanstone v Clark [2005] FCAFC 189

SUMMARY

THE HONOURABLE AMANDA VANSTONE (in her capacity as MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS) v GEOFF CLARK

V1148 of 2004

BLACK CJ and WEINBERG J
6 SEPTEMBER 2005
MELBOURNE

1 In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at <http://www.fedcourt.gov.au> together with this summary.

2 This is an appeal from orders made by a judge of the Court setting aside the decision of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to suspend Mr Clark from office as a Commissioner of the Aboriginal and Torres Strait Islander Commission ("ATSIC"). The Minister suspended Mr Clark from office because of his conviction for the offence of obstructing police arising from his involvement in events at the Criterion Hotel in Warrnambool on 2 May 2002.

3 Under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the ATSIC Act") the Minister had power to specify conduct as constituting "misbehaviour" for the purposes of the ATSIC Act. The Minister’s predecessor made a Determination that defined misbehaviour by reference to a conviction for an offence for which there is a penalty of imprisonment.

4 The Minister gave Mr Clark reasons for her decision to suspend him in which she said that his conviction amounted to "misbehaviour" by virtue of the Determination and was also within the "general concept of misbehaviour" in s 40(1) of the ATSIC Act. The primary judge found that the Determination had to be read down to avoid it discriminating against Aboriginal people in contravention of the Racial Discrimination Act 1975 (Cth) and for other reasons. The primary judge concluded that the Minister’s decision was invalid because she had not interpreted the Determination correctly and because she had not correctly interpreted and applied the meaning of "misbehaviour" as it is used in the ATSIC Act.

5 The Minister then brought this appeal to a Full Court.

6 After the appeal had been heard, the third member of the bench, Justice Selway, died but the parties consented to the appeal being determined by the remaining members of the court, as permitted by s 14(3) of the Federal Court of Australia Act 1976 (Cth).

7 The Chief Justice and Justice Weinberg have delivered separate judgments. They agree that the appeal should be dismissed, but on one point they have reached the same conclusion for different reasons.

8 Mr Clark first argued that since the ATSIC Act was about to be largely repealed, the appeal was futile and that the Court should not proceed to hear it. Since the hearing, the ATSIC Act has in fact largely been repealed, but both judges have concluded that that is no reason why the appeal should not proceed. They have therefore rejected Mr Clark’s submission that the appeal should be stayed.

9 Each of the judges has decided that the Determination relied upon by the Minister in suspending Mr Clark was invalid. The Chief Justice has concluded that it was invalid because it did not "specify" misbehaviour as required by the provisions of the ATSIC Act. Justice Weinberg differs from the Chief Justice on that point, but nevertheless considers that the Determination is invalid because it is not "proportionate" as the law requires. Since the Determination is invalid on either view, the Judges have held that it cannot support the Minister’s decision to suspend Mr Clark from office.

10 Justice Weinberg has disagreed with the primary judge about the effect of the Racial Discrimination Act. He considers that the Determination was not racially discriminatory and not in breach of the Racial Discrimination Act and did not need to be read down for that reason. The Chief Justice has agreed with Justice Weinberg on that point.

11 On the final point, which is whether Mr Clark’s conduct fell within the general concept of "misbehaviour" within the meaning of the ATSIC Act, both the Chief Justice and Justice Weinberg are of the view that "misbehaviour" in such a case must relate to fitness for office and they agree that the Minister’s reasons do not show that she has considered the question according to the correct view of what misbehaviour is in that context. They therefore agree that the appeal should be dismissed.

12 Justice Weinberg explains at [247] in his reasons that he does not intend to suggest that Mr Clark’s conduct should be viewed as anything other than serious, but explains that this is not the point. The point is whether the Minister considered the conduct against the background of a particular statutory scheme.

FEDERAL COURT OF AUSTRALIA

Vanstone v Clark [2005] FCAFC 189

STATUTES – delegated legislation – validity – whether cl 5(1)(k) identified "specified behaviour" as required – whether Ministerial determination inconsistent with or repugnant to empowering Act – use of the term "has a meaning affected by" – whether extended definition of "misbehaviour" in cl 5(1)(k) of Ministerial determination so broad as to lack reasonable proportionality – whether cl 5(1)(k) contravened Racial Discrimination Act 1975 (Cth) – whether cl 5(1)(k) should be severed rather than read down

ADMINISTRATIVE LAW – decision by Minister to suspend ATSIC Commissioner – meaning of "misbehaviour" – relationship to duties and requirements of ATSIC Commissioners – whether failure to take into account a relevant consideration – whether jurisdictional error


Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 4, 4A, 40, 27, 31(1), 53, 77G, 124F and 157(3)
Acts Interpretation Act 1901 (Cth) ss 46(1)(b) and 46A
Racial Discrimination Act 1975 (Cth) ss 8(1), 9 and 10(1)
ATSIC (Misbehaviour) Determination No 2 1994 (Cth)
Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 cll 5(1)(k) and cl 5(5)(b)


Beitseen v Johnson (1989) 29 IR 336 cited
Clark v Vanstone (in her capacity as Minister for Immigration and Multicultural and Indigenous Affairs) [2004] FCA 1105; (2004) 211 ALR 412 affirmed
Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 cited
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381 cited
Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 cited
One.Tel Limited v Australian Communications Authority [2001] FCA 54; (2001) 110 FCR 125 referred to
Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 followed
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 70 cited
Re Bluston [1966] 3 All ER 220 cited
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 cited
Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641 cited
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 cited
South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 cited
Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971) 124 CLR 468 followed
The King v Poole; Ex parte Henry [No 2] [1939] HCA 19; (1939) 61 CLR 634 referred to
Tickner v Chapman (1995) 57 FCR 451 referred to
Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142 cited
Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 cited


M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3^rd ed, 2004)
D Pearce and S Argument, Delegated Legislation in Australia (2^nd ed, 1999)
B Selway, "The Rise and Rise of the Reasonable Proportionality Test in Public Law" (1996) 7 Public Law Review 212

THE HONOURABLE AMANDA VANSTONE (in her capacity as MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS) v GEOFF CLARK

V1148 of 2004

BLACK CJ and WEINBERG J
6 SEPTEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1148 OF 2004

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	THE HONOURABLE AMANDA VANSTONE (in her capacity as MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS) APPLICANT
AND:	GEOFF CLARK RESPONDENT
JUDGES:	BLACK CJ and WEINBERG J
DATE OF ORDER:	6 SEPTEMBER 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.











Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1148 OF 2004

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	THE HONOURABLE AMANDA VANSTONE (in her capacity as MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS) APPELLANT
AND:	GEOFF CLARK RESPONDENT

JUDGES:	BLACK CJ and WEINBERG J
DATE:	6 SEPTEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BLACK CJ:

1 This appeal was heard in Melbourne by a bench of three judges. It is the sad fact that the third member of the Court, Justice Selway, died whilst judgment was reserved. The parties have, however, consented to the appeal being determined by the remaining judges pursuant to s 14(3) of the Federal Court of Australia Act 1976 (Cth).

2 The question in this appeal is whether the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") acted within power in suspending the respondent from his office as a Commissioner of the Aboriginal and Torres Strait Islander Commission ("ATSIC") for misbehaviour. The learned trial judge held that she did not and made orders in the nature of certiorari removing the Minister’s decision into this Court and quashing it.

3 I have had the advantage of reading the reasons for judgment of Weinberg J in which he outlines the history of the proceedings, the findings and reasoning of the primary judge and sets out the relevant provisions of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the ATSIC Act"). I agree with Weinberg J that the appeal should be dismissed.

4 Three issues are raised by this appeal. First, should the Court exercise its discretionary power to stay the appeal permanently because to proceed would be futile or involve the determination of issues that have become moot. Mr Clark contends that it should. Second, and assuming a negative answer to the first question, is cl 5(1)(k) of the Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 ("the Determination") – which purports to define misbehaviour and which was relied upon by the Minister in making her decision to suspend Mr Clark – a valid exercise of the legislative power delegated pursuant to s 4A(1) of the ATSIC Act. Third, was the Minister’s reliance on the "general concept of misbehaviour" in s 40(1) of the ATSIC Act sufficient on its own to support her decision to suspend Mr Clark from office.

5 I agree generally with the reasons of Weinberg J in respect of the first and third issues but would add some observations of my own. I have reached a different conclusion about a threshold aspect of the second issue, namely the validity of cl 5(1)(k) as specifying behaviour that is to constitute misbehaviour. I have concluded that the clause is invalid for reasons I explain later.

6 As to the first issue, in my view, the judicial power of the Commonwealth, having properly been invoked on this appeal, should be exercised to quell the controversy between the parties. Although the ATSIC Act has largely been repealed, there remains a controversy between the parties about whether Mr Clark was correctly suspended from office or, on the other hand, whether the Minister acted beyond her powers in suspending him. By prosecuting this appeal, the Minister continues to contend that she acted within her powers in deciding to suspend Mr Clark and, moreover, that her predecessor as Minister validly made the Determination defining misbehaviour including cl 5(1)(k). Mr Clark rejects those contentions. There is, therefore, undoubtedly a "matter" before the Court, in that the validity of the Minister’s actions and the validity of the Determination are sought, by the Minister, to be established by the Court’s decision on appeal (see In Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ)).

7 It is well established that the Court has, nevertheless, a discretionary power to stay the appeal on the grounds that to proceed would be futile, or would involve the Court in the determination of issues that are now moot (see eg Beitseen v Johnson (1989) 29 IR 336; La Roche v Cormack [1991] FCA 627; (1991) 33 FCR 414; Douglas v Tickner (1994) 49 FCR 507; and Mayne Nickless Ltd v Transport Workers Union of Australia [1998] FCA 984). This implied power has been held to derive from s 23 of the Federal Court of Australia Act 1976 (Cth). It has also been suggested to have a basis in O 20, r 2 of the Federal Court Rules (but see La Roche v Cormack [1991] FCA 627; (1991) 33 FCR 414 at 416). The issue of mootness was raised very recently before the High Court in Ruhani v Director of Police [No2] [2005] HCA 43 but there would appear to be nothing in their Honours’ reasons in the outcome of that appeal that is inconsistent with the approach I would take in the present case.

8 I am not persuaded that the Court should exercise its discretion in the manner sought by Mr Clark. Although the resolution of this appeal in the Minister’s favour cannot result in Mr Clark losing his office (because it has been abolished), it would vindicate the position she has taken. The same is true of Mr Clark and his position. The resolution of these competing positions involves the discussion of important issues of public law. All of this is sufficient to demonstrate that there remains a real contest between the parties. There is also a live issue as to costs.

9 I turn next to consider whether cl 5(1)(k) of the Determination could provide a proper foundation for the Minister’s decision to suspend Mr Clark. Clause 5(1)(k) was made pursuant to s 4A(1) of the ATSIC Act, which provides that:

The Minister may make a written determination providing that specified behaviour is taken to be misbehaviour for the purposes of this Act.

Clause 5(1) opens with these words: "For subsection 4A(1) of the Act, the behaviour of a person in each of the following circumstances is taken to be misbehaviour". Enumerated paragraphs follow, most of which indisputably describe "behaviour" and specify it. For example: seriously disruptive behaviour at a meeting of an Aboriginal body (5(1)(a)), sexual harassment (5(1)(d)), dishonestly or improperly seeking a benefit from an Aboriginal body to which the person is not entitled (5(1)(g)), bribing or attempting to bribe another person (5(1)(i)) and seriously misusing the facilities, funds or equipment of an Aboriginal body (5(1)(j)). These are all specified behaviours that constitute misbehaviour. The last paragraph is of quite a different character. It simply provides that:

(k) the person is convicted of an offence for which there is a penalty of imprisonment.

The issue raised by the amended Notice of Contention is whether cl 5(1)(k) falls within the empowering provision by specifying behaviour which is taken to be misbehaviour. Mr Clark contends that being convicted of an offence is not itself "behaviour" and cannot therefore be taken to be misbehaviour. In response, the Minister points to the opening words of the clause – "the behaviour of a person in each of the following circumstances" – to support her construction of the clause as being sufficiently broad to encompass the behaviour that comprises the relevant offence for which the person was convicted.

10 It is immediately apparent that s 4A(1) contains certain preconditions to the making of a valid determination. One is that the Minister’s determination must denote "specified behaviour". In its ordinary meaning, specified behaviour points to the reasonably identifiable conduct of a person. So, the Minister, in making a determination, cannot specify something that is not behaviour. Clause 5(1)(k), through its reference to a person being convicted of an offence, does not refer to the conduct of a person at all, but rather to the result or consequence of such conduct. Being convicted of an offence is not behaviour. Clause 5(1)(k) thus falls outside the scope of the ordinary meaning of s 4A(1) because it is not directed to "behaviour".

11 I do not accept the Minister’s submission that the opening words of the clause require cl 5(1)(k) to be given a meaning other than its ordinary meaning. In the lexicon of statutory construction, the issue is whether the statutory context requires the Court to depart from the grammatical meaning of cl 5(1)(k) in order to give that paragraph legal meaning (see Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355 at 384). That context certainly includes the opening words to the clause. It also includes the circumstance that the Determination itself revoked (see cl 7) an earlier determination which used significantly different phraseology. The corresponding clause of the ATSIC (Misbehaviour) Determination No 2 1994 provided:

For the purposes of subsection 4A(1) of the Act, the following behaviour is taken to be misbehaviour for the purposes of the Act:
...

(j) commission of an offence (for which a person may, on conviction, be imprisoned) that results in a conviction.

I express no view as to the validity of that clause, but it is noteworthy that in making the Determination now under challenge, the former Minister departed from this formulation of the clause, which would correspond with the meaning the Minister now seeks to attribute to cl 5(1)(k).

12 In any case the opening words of cl 5(1) do not, in my view, reach behind the words actually used in the Determination to pick up the conduct comprising the offence that resulted in the conviction. To achieve such a result would require a strained reading of the plain words used by the Minister. I will return to the issue whether the clause may be read down so as to be within power, after considering the consequence of adopting the Minster’s construction of the clause.

13 On the Minister’s construction of cl 5(1)(k), which gives particular weight to the opening words of the clause, it still falls outside power as the relevant behaviour is not "specified" behaviour. "Specified" behaviour imports requirements of clarity and precision and this statutory concept is not satisfied by "vague generalities": see Tickner v Chapman (1995) 57 FCR 451 at 457-458 and the authorities usefully collected by Burchett J at 480-481. Thus in Jolly v Yorketown District Council [1968] HCA 55; (1968) 119 CLR 347 at 351, Barwick CJ and Owen J considered that a statutory requirement for a notice to "specify" certain matters required that it do so "in explicit terms". The significance of this statement is illuminated by reference to Kitto J’s judgment in the same case where he stated that to specify means "to give not by inference but by direct statement." (at 352). To underline the point (if that be necessary), in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd [1913] HCA 71; (1913) 16 CLR 245 at 272, Barton J said that "[t]hings specified must be specific things. Here all is general."

14 On the construction for which the Minister contends, the behaviour that would be picked up is any behaviour of a person giving rise to a conviction for any offence for which there is a penalty of imprisonment. This would result in an extraordinarily wide range of conduct being caught by the clause, as the judgment of Weinberg J demonstrates. This could only be described as, at best, a general description of conduct rather than its specification. How is the Commissioner (who is to avoid misbehaviour) to identify or understand what behaviour is taken to be misbehaviour by a reference only to the conduct of a person who is convicted for the commission of a criminal offence? The statutory requirement of specificity should not be lost in the process of construction; to allow that would be to ignore an essential characteristic of the empowering section and, if otherwise available, the process of reading down the provision to be within power.

15 The Minister did not argue that s 46(2) of the Acts Interpretation Act 1901 (Cth) may operate so as to render the clause valid. Section 46(2) provides that where an "authority" has power to make an "instrument" specifying a matter or thing, then in exercising that power, the authority may identify the matter or thing by reference to a class or classes of matters or things. A general description of conduct is not the specification of behaviour by reference to a class of behaviour and accordingly s 46(2) does not operate upon the portion of the instrument in question.

16 It was briefly argued that s 46(1)(b) of the Acts Interpretation Act operated upon cl 5(1)(k) to read it down so as to be within the power conferred by s 4A(1). Weinberg J has noted in his reasons that s 46(1)(b) is a "reading down provision" for "instruments" which finds a corresponding provision in s 15A in relation to statutes (referring to Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311 and Re Dingan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323). As Latham CJ observed in Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 110, the provisions of the Acts Interpretation Act provide a rule of construction and not a rule of law. Moreover, the statutory provisions for reading down an instrument only apply in certain circumstances. In Pidoto, the Chief Justice stated (at 111):

where there are not separate words [in the section to be construed], but where there are general words or expressions which apply both to cases within power and to cases beyond power, then if an intention of Parliament that there should be a partial operation of the law based upon some particular standard criterion or test can be discerned from the terms of the law itself or from the nature of the subject matter with which the law deals, it can be read down so as to give valid operation of a partial character. (Emphasis added)

In the earlier case of The King v Poole; Ex parte Henry [No 2] [1939] HCA 19; (1939) 61 CLR 634 at 652, Dixon J (as he then was) noted that the Court had a power to read down a provision in the type of case where

a provision which, in relation to a limited subject matter or territory, or even a class of persons, might validly have been enacted, is expressed to apply generally without the appropriate limitation, or to apply to a larger subject matter, territory or class of persons that the power allows.

Before embarking on the process of reading down cl 5(1)(k), there would, therefore, seem to be an anterior consideration.

17 The anterior consideration is that there must be some part of the impugned provision that is capable of being within power. That is, the provision must have an application both to cases within power and to cases beyond power. Section 46(1)(b) may apply to cut down the scope of an overly wide provision. But where, as here, the provision is wholly beyond power, there is no occasion for reading it down. As Menzies J noted in relation to s 15A of the Acts Interpretation Act in Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971) 124 CLR 468 at 504

s 15A does not require more than that an Act shall, notwithstanding that it is in part in excess of legislative power, be read as a valid enactment to the extent to which it is not in excess of that power. It does not turn an Act which is invalid, as being wholly outside legislative power, into an Act which is, in part, within power.

In this case, to read down cl 5(1)(k) to be within power would first require the Court to construe the clause so as to refer to the conduct that comprises the offence for which the person was convicted (as in the case of the revoked Determination) rather than to the fact of conviction. That is not a question of the width of the provision, but would involve the Court in redrafting the provision itself, for which no authority can be derived from the Acts Interpretation Act. In such circumstances, the proper approach is to sever the invalid provision, not to reconstruct it.

18 As cl 5(1)(k) falls wholly outside the scope of the empowering provision it is invalid and of no effect. The Minister could not, therefore, justify her decision to suspend Mr Clark on the basis of the Determination. I should mention that the learned primary judge, having decided the case on other grounds, did not consider these aspects of the validity of cl 5(1)(k).

19 Having reached this conclusion, it is unnecessary for me to say anything of the Minister’s contention that s 4A(1), in combination with the definition of misbehaviour in s 4, permits the Minister to define by determination the meaning of misbehaviour such as to extend and amplify what would otherwise be its ordinary meaning in the context of the ATSIC Act. It is also unnecessary for me to consider whether the clause is capable of being considered to be reasonably proportionate to the ends sought to be achieved by the ATSIC Act. Although it is also strictly unnecessary for me to say anything of the primary judge’s conclusion that s 10(1) of the Racial Discrimination Act 1975 (Cth) was engaged such as to require the reading down of the clause, it is desirable that I express my agreement with the reasoning and conclusion of Weinberg J on this point. The clause was not racially discriminatory.

20 This conclusion does not, however, dispose of the appeal. There remains the Minister’s submission that the suspension of Mr Clark was independently justifiable by reference to the "general concept of misbehaviour". I agree with Weinberg J that the learned primary judge was correct in holding that the Minister was required, pursuant to s 40(1) of the ATSIC Act, to consider whether Mr Clark’s conduct bore upon his capacity to continue to hold office as an ATSIC Commissioner.

21 Plainly enough, the word misbehaviour takes its meaning from its context. In ordinary usage, to speak of the misbehaviour of school students on public transport, or the misbehaviour of a crowd or players at a sporting event, or the misbehaviour of a judicial officer, or the misbehaviour of a jury is to use the word – and to give it a corresponding meaning – that differs markedly with each context. Depending upon the context, the conduct said to be misbehaviour may range from the slight and trivial to a matter of grave public concern. Misbehaviour is a word that is especially susceptible to taking its content from its context.

22 The concept of misbehaviour, as it is employed in the ATSIC Act, is used as a gateway to the process of suspension from office of an ATSIC Commissioner. In his reasons, Weinberg J has described and explained the legislative scheme that applied to ATSIC Commissioners and I gratefully adopt his Honour’s account of that scheme. "Misbehaviour" is to be read in the context of that scheme in order to give legal meaning to the word. The Minister’s submission – that in considering whether Mr Clark’s conduct amounted to misbehaviour there were no considerations that she was required to take into account – would divorce the word from its context and would lead to the conclusion that misbehaviour can be constituted by conduct that is entirely irrelevant to the capacity of a person to continue to hold an office. That submission must be rejected.

23 Moreover, there is much to be said for the view that at least some connection with the capacity to hold office is indicated by the words of s 40(1) itself and an object that, taken as a whole, they reveal. The words are: "the Minister may suspend a Commissioner from office because of misbehaviour or physical or mental incapacity." The concepts of "misbehaviour" and "physical or mental incapacity" are juxtaposed in the ATSIC Act and the latter way well influence the meaning of the former and illuminate the real object of provision. Incapacity is not used in s 40(1) to refer to a disability of any kind but to a continuing capacity to hold office. There is good reason to read misbehaviour in a corresponding manner.

24 The Minster was required to take this legal meaning of misbehaviour into account when considering whether to suspend Mr Clark from his office and I agree with Weinberg J that the Minister cannot be taken to have considered how Mr Clark’s conduct impacted upon his capacity to perform his duties as an ATSIC Commissioner. The Minister’s decision cannot, therefore, be supported by reference to s 40(1).

25 It is for these reasons that I agree with Weinberg J that the appeal should be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

Associate:

Dated: 6 September 2005

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1148 OF 2004

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	THE HONOURABLE AMANDA VANSTONE (in her capacity as MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS) APPLICANT
AND:	GEOFF CLARK RESPONDENT

JUDGES:	BLACK CJ and WEINBERG J
DATE:	6 SEPTEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

WEINBERG J:

INTRODUCTION

26 This is an appeal from a judgment of Gray J, delivered on 27 August 2004: Clark v Vanstone (in her capacity as Minister for Immigration and Multicultural and Indigenous Affairs) [2004] FCA 1105; (2004) 211 ALR 412. Mr Geoff Clark, the respondent to this appeal, initiated those proceedings. He sought judicial review, pursuant to ss 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth), of two decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), Senator the Hon Amanda Vanstone.

27 The first decision sought to be reviewed was that of the Minister, on 23 December 2003, to give notice to Mr Clark that she was considering suspending him from office as a Commissioner of the Aboriginal and Torres Strait Islander Commission ("ATSIC"), pursuant to s 40(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the ATSIC Act") on the basis of his alleged misbehaviour.

28 The second decision sought to be reviewed was that of the Minister, on 22 January 2004, to suspend Mr Clark from office, pursuant to s 40(1), for misbehaviour.

29 Gray J at first instance held that no error was demonstrated in relation to the first of these decisions. Mr Clark has not challenged that aspect of his Honour’s judgment. However, in respect of the second decision, Gray J made orders in the nature of certiorari removing into this Court, and subsequently quashing, the Minister’s decision to suspend Mr Clark from office as a Commissioner of ATSIC. It is from those orders that the Minister now appeals.

30 Originally, a Full Court comprising Black CJ, Weinberg and Selway JJ heard this appeal. The untimely death of Selway J, after the Court reserved judgment in this matter, meant that s 14(3) of the Federal Court of Australia Act 1976 (Cth) could be invoked, with the consent of the parties. That consent has been given, and accordingly, the two remaining members of the Full Court will determine the appeal.

31 After this appeal was heard, the ATSIC Act was virtually repealed. The Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth) received Royal Assent on 22 March 2005. That Act effectively abolished ATSIC, and left little of the structure previously established by the ATSIC Act intact. Subject to one qualification, to which I shall turn in a moment, the amending Act has no bearing upon any issue in this appeal. For the sake of convenience, I will refer to the ATSIC Act throughout this judgment as though it still has continuing force.

32 The qualification that needs to be considered arises from Mr Clark’s submission that the appeal is moot, futile, and should be dismissed on that ground alone. That submission was advanced during the hearing of the appeal, prior to the date on which the amending Act came into force. Nonetheless, it should be treated as having been made in the light of what subsequently occurred. ATSIC no longer exists. Why then, should this Court determine the correctness or otherwise of Gray J’s decision to quash the Minister’s decision to suspend Mr Clark from office?

33 Mr Clark notes that having been suspended from his office as Chairperson of ATSIC on 13 August 2003, he returned to office on 27 August 2004, after Gray J quashed the Minister’s decision. In this appeal, the Minister seeks to set aside his Honour’s orders quashing her decision. That would simply put Mr Clark back in the position of being suspended, albeit from a body in relation to which he could no longer hold office. The effect of his suspension was to keep him on full pay. Nothing would change in that regard. Accordingly, it is submitted, the question whether or not Gray J was correct has been deprived of any practical significance.

34 Mr Clark referred to several authorities in support of his contention that the appeal was moot. In particular, he relied upon Beitseen v Johnson (1989) 29 IR 336 ("Beitseen") where a union had been ordered to treat the respondent as having been validly appointed to a particular office. By the time the matter came on for appeal, an election was in progress for that office. This led the Full Court to conclude that the matter was academic. The Full Court said, at 338:

A related consideration which has weighed with the Court in the exercise of its discretion arises from the constraints of time and resources to which the Court is presently subject. When the judicial system is in an apparently permanent state of stress, and courts are finding it increasingly difficult to keep up with their work, they cannot afford the luxury of spending time on interesting questions of law which, because they have been overtaken by events, have become of academic interest only. With so many cases of real importance to litigants, and often to the public generally, waiting to be heard or for judgment to be given, others must be discouraged from commencing or pursuing litigation which can have little or no practical result – particularly if that litigation is being funded in whole or in part by the taxpayer.

35 This was despite the appellant’s contention, in Beitseen, that the issues surrounding Mr Johnson’s incumbency raised important questions of general application as to the proper construction of the rules of the union, and the asserted practical consequence that it might be possible to recover remuneration from Mr Johnson should the appeal succeed.

36 It is clear that Mr Clark has been reinstated to an office that no longer exists. In these circumstances, any appeal by the Minister is said by Mr Clark to be pointless.

37 During the hearing of the appeal, the Minister submitted that there was nothing "moot or futile" about the process. At that stage, Mr Clark continued to hold the position of ATSIC Chairperson, and still had duties to perform. The Minister acknowledged that there was a bill to abolish ATSIC before the Parliament. She submitted, however, that the fact that the law might change in the future did not render the appeal moot.

38 Events have overtaken both sides’ submissions. There is now a stronger case to be made for a finding that the appeal is moot. Nonetheless, I am of the view that the appeal should be determined. For one thing, his Honour’s judgment raises a number of important and difficult questions of law. Some of these involve questions of principle that are of general application. These include the interpretation to be given to a particular drafting technique that is now being frequently used in Commonwealth statutes. Moreover, his Honour’s finding that the Minister’s decision rested in part upon a statutory instrument that contravened the Racial Discrimination Act 1975 (Cth) ("the RDA"), could have far-reaching implications so far as that Act is concerned. The case involves issues that have attracted the attention of the public, the indigenous community, and the media. It would be unfortunate if it were to be left in an unresolved state. The Court has received the benefit of full argument on the issues raised, and, for that reason alone, the decision to declare the matter moot should not be taken lightly. Finally, and at a purely formal level, there is still a "matter" to be resolved. When Gray J allowed Mr Clark’s application, he ordered costs against the Minister. Those costs, as well as the costs of this appeal, are likely to be substantial. That of itself provides some justification for determining the appeal.

THE CRIMINAL PROCEEDINGS AGAINST MR CLARK

39 On the evening of 2 May 2002, Mr Clark was involved in an incident that took place at the Criterion Hotel in Warrnambool, Victoria. As a result of that night’s events, he was charged with nineteen criminal offences. Fourteen of those charges were later withdrawn, but Mr Clark proceeded to stand trial before the Magistrates’ Court of Victoria on the five remaining charges.

40 Ultimately, the presiding Magistrate dismissed three of the charges. However, Mr Clark was found guilty of one charge of obstructing police pursuant to s 52(1) of the Summary Offences Act 1966 (Vic), and one charge of behaving in a riotous manner in a public place pursuant to s 17(1)(d) of the same Act. As a result, on 28 March 2003, the Magistrate convicted Mr Clark, and in sentencing him imposed an aggregate fine of $2000.

41 Mr Clark exercised his right to appeal to the County Court of Victoria. His appeal was heard by Judge White. It is important to note that the appeal was by way of rehearing (by way of hearing de novo), and not by way of review, or reconsideration of the Magistrate’s decision. Because the appeal was by way of rehearing, the conviction and sentence imposed by the Magistrates’ Court were set aside at the outset, in accordance with ss 85 and 86(1) of the Magistrates’ Court Act 1989 (Vic).

42 In delivering judgment on 3 December 2003, Judge White found Mr Clark not guilty of behaving in a riotous manner, but guilty of obstructing police. In sentencing for that offence on the following day, his Honour made new orders convicting Mr Clark and imposing a fine of $750.

43 Mr Clark then instituted proceedings in the Supreme Court of Victoria seeking judicial review of Judge White’s orders. That application was dismissed by Byrne J on 7 April 2004: Clark v Ryan [2004] VSC 106. No further avenues of appeal were thereafter pursued.

44 It should be noted that the maximum penalty for the offence of obstructing police is a fine of $2500, or imprisonment for a term of six months, or both.

THE LEGISLATIVE SCHEME APPLYING TO ATSIC

45 ATSIC was established by the ATSIC Act, and was generally acknowledged to be a unique organisation. It was designed to facilitate indigenous Australians enjoying a greater measure of self-government and self-determination than had previously been available to them in the Australian polity. Though part of the executive arm of government, it also played an important role in representing the views of indigenous people. ATSIC was assigned the responsibility of assisting the Government in the formulation and implementation of policies on issues affecting indigenous Australians, and acting as a representative body advocating their interests. The peak body within ATSIC was its Commission.

46 Indigenous Australians who met the voting qualifications set out in the ATSIC Act were entitled to participate in direct elections to choose members of regional councils. These councils exercised specified functions of ATSIC in relation to their region. At the conclusion of each series of regional council elections, regional councillors within a larger geographic area, known as a "zone", would come together as an electoral college to choose one of their number as a "zone representative". The Minister would then appoint the various zone representatives as Commissioners of ATSIC: see ATSIC Act s 27. It was a qualification for appointment as a Commissioner that a person must be either an Aboriginal person, or a Torres Strait Islander: see ATSIC Act s 31(1).

47 Section 40 of the ATSIC Act specified procedures that enabled the Minister, in certain circumstances, to take steps to suspend and ultimately terminate the appointment of a Commissioner. The section relevantly provided:

40 Termination of appointment

(1) Subject to subsection (2), the Minister may suspend a Commissioner from office because of misbehaviour or physical or mental incapacity.

(2) The Minister must not suspend a Commissioner from office unless the Minister has, by written notice served on the Commissioner, given the Commissioner 7 days within which to show cause why the Commissioner should not be suspended.

(3) The Minister shall cause a statement identifying the Commissioner and setting out the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of that House after the suspension.

(4) Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the Commissioner ought to be restored to office and, if each House so passes such a resolution, the Minister shall terminate the suspension.

(5) If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the Minister may terminate the appointment of the Commissioner.

48 Section 40(7) specified circumstances in which the Minister was required to terminate a Commissioner’s appointment:

(7) If a Commissioner:

(a) is convicted of an offence against a Commonwealth, State or Territory law and sentenced to imprisonment for one year or longer; or
(aa) is convicted of 2 or more offences against a Commonwealth, State or Territory law and sentenced in respect of all the offences to a single penalty of imprisonment for one year or longer; or
(b) is convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced to imprisonment for 3 months or longer; or
(ba) is convicted of 2 or more offences against a Commonwealth, State or Territory law involving dishonesty and sentenced in respect of all the offences to a single penalty of imprisonment for 3 months or longer;
...

the Minister shall terminate the appointment of that Commissioner.

49 In interpreting s 40(1), reference must be had to at least two other provisions of the ATSIC Act. Firstly, s 4A provided that:

4A Minister may make determinations about what constitutes misbehaviour

(1) The Minister may make a written determination providing that specified behaviour is taken to be misbehaviour for the purposes of this Act.

(2) The Minister may make a written determination providing that specified behaviour is taken not to be misbehaviour for the purposes of this Act.

(3) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

50 In addition, in s 4, "misbehaviour" was given the following definition:

misbehaviour has a meaning affected by section 4A.

51 At the time of the events of 2 May 2002 at the Criterion Hotel, a determination of the kind described in s 4A above was in effect. This was the ATSIC (Misbehaviour) Determination No 2, made in 1994 by the then Minister for Aboriginal and Torres Strait Islander Affairs, the Hon Robert Tickner MP ("the 1994 Determination").

52 The 1994 Determination was revoked and replaced on 14 November 2002 by the Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 ("the 2002 Determination") made by Senator Vanstone’s predecessor as Minister, the Hon Philip Ruddock MP. The parties accepted that, as the 1994 Determination had been superseded by the 2002 Determination before the criminal proceedings against Mr Clark were finalised, the 2002 Determination governed the issues falling for consideration in these proceedings.

53 The relevant sections of the 2002 Misbehaviour Determination read as follows:

4 Application of Determination

This Determination applies in relation to the behaviour of a person holding or occupying one or more of the following offices or positions:

(a) Commissioner (includes Chairperson and Deputy Chairperson of ATSIC) (section 40 of the Act);
(b) Regional Councillor (section 122A of the Act);
(c) Chairperson of a Regional Council (section 127C of the Act);
(d) Deputy Chairperson of a Regional Council (section 127G of the Act);
(e) Chief Executive Officer (of ATSIC) (section 53 of the Act);
(f) Director of Evaluation and Audit (of ATSIC) (section 77G of the Act);
(g) Administrator of a Regional Council (section 124F of the Act);
(h) Chairperson of the TSRA (section 143Y of the Act);
(i) Deputy Chairperson of the TSRA (s 144B of the Act);
(j) member of the TSRA (section 143S of the Act);
(k) TSRA General Manager (section 144P of the Act);
(l) TSRA Administrator (section 144ZN of the Act);
(m) Indigenous Business Australia Director (includes Chairperson and Deputy Chairperson of the Indigenous Business Australia Board) (section 165 of the Act);
(n) appointed Indigenous Land Corporation Director (includes Chairperson and Deputy Chairperson of the Indigenous Land Corporation) (section 192H of the Act).
Note The section references are references to the sections of the Act under which, because of misbehaviour:
(a) the person may be suspended or removed from office; or
(b) the person’s appointment may be terminated

5 Behaviour taken to be misbehaviour for the purposes of the Act

(1) For subsection 4A(1) of the Act, the behaviour of a person in each of the following circumstances is taken to be misbehaviour:

(a) the person, at a meeting of an Aboriginal body:

(i) behaves in a way that has a seriously disruptive effect on the meeting; and
(ii) continues to do so after the person who is presiding at the meeting requests the person to refrain from the behaviour;

(b) the person contravenes subsection 90(2) of the Act;
(c) the person gives incorrect or misleading information, or fails to disclose relevant information, with the intention or result that the person is paid remuneration or allowances by an Aboriginal body or under a law of the Commonwealth;
(d) the person sexually harasses another person within the meaning of Division 3 of Part II of the Sex Discrimination Act 1984;
(e) the person harasses, intimidates or interferes with:

(i) a member or an employee of an Aboriginal body; or
(ii) another person in relation to a member or an employee of an Aboriginal body;

with the intention or result that the member or employee breaches a code of conduct applicable to him or her, or otherwise fails in his or her duties;
(f) the person influences or attempts to influence a member or an employee of an Aboriginal body in the performance of his or her duties with the intention or result that the person or another person gains an improper advantage;
(g) the person dishonestly or improperly seeks a benefit from an Aboriginal body to which the person is not entitled;
(h) the person behaves in a way that brings the integrity and public reputation of an Aboriginal body into public disrepute;
(i) the person bribes or attempts to bribe another person;
(j) the person seriously misuses the facilities, funds or equipment of an Aboriginal body;
(k) the person is convicted of an offence for which there is a penalty of imprisonment.

(2) Behaviour mentioned in paragraphs (1)(a) to (k) includes behaviour of the person whether or not the person is performing duties or functions as the holder or occupier of an office or position mentioned in section 4.

(3) For paragraph (1)(e), a person is not taken to interfere with a member or employee of an Aboriginal body if the person is acting:

(a) in good faith; and
(b) in the performance of his or her own duties or functions, whether as the holder or occupier of:

(i) an office or position mentioned in section 4; or
(ii) another office or position.

(4) Behaviour mentioned in paragraph (1)(h) includes behaviour of the person that:

(a) occurred after the commencement of this Determination and before the person held or occupied the office or position; and
(b) becomes public knowledge after that time.

(5) For paragraph (1)(k), a person is taken to be convicted of an offence if:

(a) the person is convicted, whether summarily or on indictment, of the offence; or
(b) the person is charged with, and found guilty of, the offence but discharged without a conviction being recorded.

6 Determination not exhaustive

(1) Section 5 is not intended to limit the kinds of behaviour that are misbehaviour for the Act.

(2) Any behaviour that is misbehaviour within the general meaning of the Act does not cease to be misbehaviour because of anything in this Determination.

7 Revocation

The ATSIC (Misbehaviour) Determination No. 2 is revoked.

ACTIONS TAKEN AGAINST MR CLARK BY THE MINISTER

THE FIRST SUSPENSION

54 On 12 July 2003, Mr Ruddock initiated procedures to suspend Mr Clark from office as a Commissioner of ATSIC. He informed Mr Clark in a letter of that date that he considered that, amongst other matters, Mr Clark’s commission of and conviction by the Magistrates’ Court for criminal offences might constitute misconduct. As required by s 40(2) of the ATSIC Act, the Minister invited Mr Clark to show cause why he should not be suspended. Mr Clark made submissions to the then Minister on this point. Nonetheless, Mr Ruddock formed the view that Mr Clark had engaged in misbehaviour, and advised him in writing on 13 August 2003 that he had suspended him from office ("the first suspension"). On the same day Mr Ruddock tabled statements regarding the suspension in both Houses of Parliament, as required by s 40(3) of the ATSIC Act.

55 Mr Clark commenced proceedings in this Court on 9 September 2003 challenging the validity of the first suspension (proceeding V858 of 2003). Ultimately, for reasons that are immaterial to the disposition of this appeal, Mr Ruddock’s successor as Minister, Senator Vanstone, revoked that first suspension on 22 January 2004. Gray J later gave leave to discontinue those proceedings, and nothing further turns on them.

THE SECOND SUSPENSION

56 However, after Judge White had convicted Mr Clark of obstructing police, in a letter dated 23 December 2003, Senator Vanstone wrote to Mr Clark advising him that she was considering initiating a second suspension process against him. The Minister wrote:

I consider that your conduct in, and/or commission of and/or conviction for the offence of, obstructing police may constitute misbehaviour within the meaning of section 40(1) of the Aboriginal and Torres Strait Islander Commission Act 1989. This is on the basis that these matters may amount to

• general misbehaviour; and/or
• misbehaviour under paragraph 3(1)(j) of the ATSIC (Misbehaviour) Determination No 2 dated 21 September 1994, namely commission of an offence (for which a person may, on conviction, be imprisoned) that results in a conviction; and/or
• misbehaviour under paragraph 5(1)(k) of the Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 dated 14 November 2002, namely commission of an offence for which there is a penalty of imprisonment. (Emphasis in original)

57 As required by the ATSIC Act, the Minister invited Mr Clark to make submissions to her as to whether she should ultimately suspend him.

58 Mr Clark initiated these current proceedings on 8 January 2004. In addition, on 16 January 2004, he forwarded detailed submissions to the Minister regarding the second suspension that she had foreshadowed. Nevertheless, on 22 January 2004, the Minister wrote to Mr Clark advising that she had resolved to suspend him from office as a Commissioner of ATSIC. After referring to the by then revoked first suspension, the Minister continued:

New suspension

On 23 December 2003 I sent you a separate letter asking you to show cause to me why you should not be suspended from your office as a Commissioner of ATSIC.

On 2 May 2002 you were involved in events at the Criterion Hotel in Warrnambool which lead to you being charged with the offence of obstructing police under section 52(1) of the Summary Offences Act 1966 (Vic). On 3 December 2003 Judge White of the County Court of Victoria found you guilty of the offence of obstructing police.

As I outlined in that letter, I considered that your conduct in, and/or commission of and/or conviction for the offence of, obstructing police may constitute misbehaviour within the meaning of section 40(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act).

I have received and considered your submissions to me dated 16 January 2004 on this matter. I have also considered your letter and submissions dated 19 December 2003, all correspondence from your solicitors in relation to why you should not be suspended, the Notice to Certain Officials of a County Court’s Appeal Decision, the transcript of the judgment of his Honour Judge White of the County Court of Victoria on 3 December 2003, and his Honour’s sentencing remarks on 4 December 2003.

I consider that your conduct in, and/or commission of and/or conviction for the offence of, obstructing police constitutes misbehaviour within the meaning of section 40(1) of the ATSIC Act.

This is on the basis that your conviction by the County Court of Victoria amounts to misbehaviour under section 40(1) of the ATSIC Act by reason of paragraph 5(1)(k) of the Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 dated 14 November 2002, namely conviction of an offence for which there is a penalty of imprisonment.

This is also on the basis that your conduct in obstructing police, and/or your commission of the offence of obstructing police, and/or your conviction for the offence of obstructing police by the County Court of Victoria, are within the general concept of misbehaviour in section 40(1) of the ATSIC Act.

I consider that each of these grounds warrants suspension.

I am therefore suspending you from office as a Commissioner of ATSIC under section 40(1) of the ATSIC Act effective from the date of this letter, for this misbehaviour. You are therefore also suspended from your position as Chairperson of ATSIC.

59 It bears noting that, in contrast to what was foreshadowed in the "show cause" letter of 23 December 2003, the Minister no longer sought to rely on the 1994 Determination as supporting her finding of misbehaviour. Rather, she relied on the 2002 Determination, and additionally on the "general concept of misbehaviour in section 40(1) of the ATSIC Act" to support her finding.

60 The ministerial statements required by s 40(3) of the ATSIC Act were laid before both Houses of Parliament on 12 February 2004.

61 On 23 January 2004, Mr Clark’s solicitors wrote to the Minister requesting, pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), a statement of reasons for her decision. The Minister furnished this statement on 19 February 2004. It is appropriate to set out her reasons here in full:

STATEMENT OF REASONS

REGARDING SUSPENSION OF MR GEOFF CLARK AS A COMMISSIONER OF THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

1. By letter dated 22 January 2004 I, Amanda Vanstone, Minister for Immigration and Multicultural and Indigenous Affairs, advised Mr Geoff Clark of my decision to suspend him from office as a Commissioner of the Aboriginal and Torres Strait Islander Commission (ATSIC) for misbehaviour pursuant to subsection 40(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 (the Act). Mr Clark has consequently also been suspended from his position as Chairperson of ATSIC.

FINDINGS ON MATERIAL QUESTIONS OF FACT

2. My decision was made on the basis of the facts that on 2 May 2002, Mr Clark engaged in conduct that led to his conviction for the offence of obstructing police under subsection 52(1) of the Summary Offences Act 1966 (Vic). This offence has a maximum penalty of six months imprisonment. On 3 December 2003 his Honour Judge White of the County Court of Victoria found Mr Clark guilty of the offence. On 4 December 2003 his Honour recorded a conviction and ordered that Mr Clark be fined $750.

3. I considered that Mr Clark’s conduct in, and/or commission of and/or conviction for the offence of, obstructing police constitutes misbehaviour within the meaning of subsection 40(1) of the Act.

EVIDENCE ON WHICH FINDINGS WERE BASED

4. The material, which I took into account in making my decision, is as follows:

• Section 40 of the Act;
• Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 dated 14 November 2002 (the 2002 Determination);
• ATSIC (Misbehaviour) Determination No. 2 dated 21 September 1994 (the 1994 Determination);
• Notice to Certain Officials of a County Court Appeal Decision dated 4 December 2003;
• Letter from Mr Clark’s solicitors (Coadys) to me dated 4 December 2003;
• Letter from Coadys to my lawyers, the Australian Government Solicitor (AGS), dated 11 December 2003;
• Letter from Coadys to me dated 19 December 2003, and accompanying submissions;
• Letter from me to Mr Clark dated 23 December 2003 asking him to show cause why he should not be suspended;
• Letter from Coadys to me dated 24 December 2003;
• Letter from Coadys to AGS dated 6 January 2004;
• The affidavit of Mark Andrew Yorston, a partner with Coadys, sworn on 8 January 2004;
• Article published by The Age on 6 December 2002 "ATSIC Board calls for Clark reinstatement" attached to Mr Yorston’s affidavit;
• Letter from Marjorie Woodrow and Des Donely to Mr Clark, attached to Mr Yorston’s affidavit;
• Submissions of 16 January 2004 titled "The Show Cause Notice";
• County Court Transcript of Judgments and Sentencing Comments dated 3 and 4 December 2003;
• Transcript of Federal Court hearing dated 15 January 2004; and
• Brief from my Department dated 21 January 2004.

REASONS FOR DECISION

Legal authority for the decision

5. The legal basis of my decision is as follows.

6. Subsections 40(1) and (2) of the Act provide:

"(1) Subject to subsection (2), the Minister may suspend a Commissioner from office because of misbehaviour or physical or mental incapacity.
(2) The Minister must not suspend a Commissioner from office unless the Minister has, by written notice served on the Commissioner, given the Commissioner 7 days within which to show cause why the Commissioner should not be suspended."

The term "misbehaviour" is not defined in the Act. In section 40(1) misbehaviour has its general meaning, subject to section 4A of the Act.

7. Subsection 4A(1) of the Act provides:

"(1) The Minister may make a written determination providing that
specified behaviour is taken to be misbehaviour for the purposes of this
Act."

8. On 14 November 2002, the former Minister for Immigration and Multicultural and Indigenous Affairs, the Hon Philip Ruddock MP, made a Determination under subsection 4A(1) of the Act. That Aboriginal and Torres Strait Islander (Misbehaviour) Determination 2002 provides in paragraph 5(1)(k) that where a person "is convicted of an offence for which there is a penalty of imprisonment" the behaviour is taken to be misbehaviour for the purposes of the Act. Paragraph 5(5)(a) provides that a person is taken to be convicted of an offence if "the person is convicted, whether summarily or on indictment, of the offence".

Submissions

9. On 23 December 2003 I wrote to Mr Clark, pursuant to subsection 40(2) of the Act, asking him to "show cause" why he should not be suspended as a Commissioner of ATSIC for misbehaviour. The basis of the potential misbehaviour was stated to be: the conduct in, and/or commission of and/or commission of and/or conviction for the offence of, obstructing police as found by his Honour Judge White of the County Court.

10. On 16 January 2004 Mr Clark responded to my letter through his lawyers. Mr Clark and his solicitors made extensive submissions in relation to the areas of concern raised in my "show cause" notice. It was also submitted that, for various legal reasons, I was not able to suspend Mr Clark on the basis stated in my "show cause" notice. Mr Clark had made earlier submissions on these matters. I carefully considered each of these submissions.

11. The principal submissions made and my views on them are as follows.

Misbehaviour

12. In their response of 16 January 2004 to my "show cause" letter, solicitors for Mr Clark made a number of submissions regarding the application and scope of "general misbehaviour", the 1994 Determination and the 2002 Determination. It was submitted that the term "general misbehaviour" adds nothing to assist in defining "misbehaviour" and that reference to the term suggests that something beyond that envisaged in the Determinations was being considered. It was also submitted that the 1994 Determination does not apply because it was revoked by the 2002 Determination at a time when Mr Clark did not have a conviction. It was also submitted that the 2002 Determination does not apply retrospectively and therefore the Determination cannot apply to Mr Clark’s conduct on 2 May 2002. It was also submitted that in so far as both Determinations purported to apply in circumstances where a person has been convicted but not sentenced to a period of imprisonment, they would be invalid and unauthorised because they are inconsistent with, or disproportionate to, the objectives of the Act. A similar submission was made by Mr Clark’s solicitors in their submissions to me dated 19 December 2003.

13. I took the view that the conviction occurred when the 2002 Determination was in operation and that this conviction amounted to misbehaviour for the purposes of that Determination. The Act allowed for the Determination to be made, and allowed me to rely on it in considering suspension.

14. I also took the view that Mr Clark’s conduct in obstructing police, which amounted to commission of the offence of obstructing police, and the conviction for the offence of obstructing police, fell within the general concept of misbehaviour and would support the suspension independently of the 2002 Determination.

15. Whilst the offence occurred when the 1994 Determination was in operation, the conviction by the County Court occurred after the repeal of that Determination. I therefore took the view that regard should not be had to that Determination.

Unlawful and improper exercise of powers under section 40 of the Act

16. Solicitors for Mr Clark alleged, in their Federal Court interlocutory application of 8 January 2004, that I could not make a second suspension proposal (ie send my "show cause" letter) while Mr Clark was still suspended by the decision of former Minister Ruddock. In summary, they also alleged that a fair-minded observer might infer that I had prejudged my exercise of power under section 40(1) of the Act because I intended to suspend Mr Clark; that nothing Mr Clark said or did would change my view; and that I intended to ensure that Mr Clark was not restored to his position for any period of time before I suspended him on the basis of my show cause letter. Accordingly they submitted that there would be a denial of natural justice because I was not bringing an impartial mind to the question of whether to suspend Mr Clark.

17. Some of these allegations were also raised in a letter from Mr Clark’s solicitors to AGS dated 6 January 2004.

18. I was of the view that all of these claims were unsustainable. Firstly, the fact that Mr Clark was suspended did not prevent the issuing of a show cause notice. Further, as my intention at all times was to ensure that I acted in accordance with due and proper process I did not accept the allegations that I acted improperly or unlawfully. Further, Mr Clark’s conviction by the County Court was a serious matter which warranted the issue of a show cause notice, and my consideration of whether he should be suspended on that basis. I did not decide to suspend Mr Clark until after I had received his response to the show cause notice, and had carefully considered the materials noted above.

Appeal of conviction

19. Solicitors for Mr Clark submitted, in their letter to me dated 4 December 2003 and submissions dated 16 January 2004, that I should put little weight on the judgment of the County Court regarding the conviction for obstructing police. They claimed that Mr Clark would lodge an application for judicial review of the conviction in the Supreme Court of Victoria, based on grounds alleging certain errors of law, and that Mr Clark had received legal advice that he has good prospects of having the County Court conviction set aside.

20. I considered these submissions, but took the view that I was entitled to act on the conduct in, and/or commission of and/or conviction for, the offence. I also informed Mr Clark that provided any such application for judicial review was proceeded with expeditiously, it was not my intention to consider termination of his appointment until the outcome of that application was determined.

Submissions regarding whether suspension is warranted

21. A number of submissions were made by Mr Clark’s solicitors regarding whether I should suspend Mr Clark on the basis of the County Court conviction. These submissions included:

• that Mr Clark is a democratically elected Commissioner and Chairperson;
• that the ATSIC Board remains fully supportive of Mr Clark and unanimously called for his reinstatement after the County Court appeal;
• that interference with elected office holders should be reserved for occasions where a person has engaged in extremely serious behaviour or conduct which directly affects the person’s capacity for office, and that such is not the case for Mr Clark;
• that Mr Clark’s conduct is no more serious than the kinds of convictions which have not led to a disqualification of a member of Parliament from office;
• that given the racial tensions which existed at the relevant time, Mr Clark’s conduct is even more understandable; and
• that there should be proportionality between the conviction and fine and action taken by the Minister, which is explicable as against the behaviour of other elected representatives.

22. Some of these submissions were also made by Mr Mark Yorston, Mr Clark’s solicitor, in his affidavit sworn on 8 January 2004. Mr Yorston’s affidavit attached a letter from an Aboriginal elder, which was also signed by another Indigenous Australian, expressing their concern about Mr Clark’s suspension and support for his reinstatement.

23. Mr Yorston also swore that: Mr Clark and his family had suffered as a result of the suspension; that Indigenous representatives and individuals had continued to direct a large number of inquiries to Mr Clark requesting his assistance for which he was not being reimbursed; that unless Mr Clark was reinstated he would not be able to attend to important tasks over the next few weeks, including the restructure of ATSIC and a meeting on reconciliation; and that Australian Indigenous people would only benefit from Mr Clark’s expertise in upcoming international fora if he was reinstated.

24. Mr Clark’s solicitors also submitted, in their letter and submissions to me dated 19 December 2003, that I should not find that the County Court’s finding of guilt and conviction constitute misbehaviour within the meaning of section 40(1) of the Act, on the basis of the judgments and sentencing remarks of his Honour Judge White regarding the nature and relative severity of the finding of obstructing police (for example, his Honour’s finding that the obstruction was "not at the high end of the scale" for the offence of obstructing police). Similar submissions were made by Mr Clark’s solicitors in their letter to AGS dated 11 December 2003. It was also submitted that I should consider the entire proceedings of the County Court, rather than just the judgments and sentencing remarks (letter to AGS dated 11 December 2003).

25. I considered all of these submissions, including the findings of his Honour Judge White in relation to the circumstances of the offence, as set out in his Honour’s judgment and sentencing remarks. I also considered the particular circumstances of this matter in the context of the relevant legislative scheme. I concluded that Mr Clark’s behaviour was sufficiently serious to warrant suspension.

CONCLUSIONS

26. In summary, I considered that Mr Clark’s conduct in, and/or commission of and/or conviction by the County Court for the offence of, obstructing police under subsection 52(1) of the Summary Offences Act 1966 amounted to misbehaviour within the meaning of subsection 40(1) of the Act.

27. This was on the basis that the conviction by the County Court amounted to misbehaviour under subsection 40(1) of the Act by reason of paragraph 5(1)(k) of the 2002 Determination, namely conviction of an offence for which there is a penalty of imprisonment.

28. This was also on the basis that Mr Clark’s conduct in obstructing police, and/or his commission of the offence of obstructing police, and/or his conviction for the offence of obstructing police by the County Court of Victoria, were within the general concept of misbehaviour in subsection 40(1) of the Act.

29. I considered that each of these grounds warranted suspension. I therefore suspended Mr Clark from office as Commissioner of ATSIC on 22 January 2004 under subsection 40(1) of the Act.

30. As required by subsection 40(3) of the Act, I then tabled a statement before both Houses of Parliament.

31. At the conclusion of the statutory period for consideration by the House, and by the Senate, I will make a decision as to whether Mr Clark’s suspension will be lifted or whether he will remain suspended from office. If both Houses of Parliament pass a resolution declaring that Mr Clark be restored to office I must lift the suspension. If both Houses of Parliament do not pass such a resolution, I will have to decide whether to terminate Mr Clark’s appointment under subsection 40(5) of the Act. However it is not my intention to consider the termination of Mr Clark’s appointment until such time as his foreshadowed application to the Supreme Court of Victoria seeking judicial review of his County Court conviction is determined provided any such application for judicial review is proceeded with expeditiously.

ARGUMENTS ADVANCED TO THE PRIMARY JUDGE

62 Mr Clark’s challenge to both the decision to give him a "show cause" notice on 23 December 2003, and the decision to suspend him on 22 January 2004, was initially based on four grounds. These were not separately numbered by his Honour, but I propose to assign numbers to them for the sake of clarity. They may be summarised as follows:

(i)	there was no power to initiate a second suspension process while a first suspension was still extant, particularly if that second process were based, wholly or partly, on the same conduct as the first suspension;
(ii)	cll 5(1)(k) and 5(5) of the 2002 Determination, which purported to define misbehaviour by reference to a conviction or a finding of guilt of any offence for which a term of imprisonment might be imposed, were invalid in that they exceeded the power to define misbehaviour expressed in s 4A of the ATSIC Act, and also contravened s 10(1) of the RDA;
(iii)	the power to suspend based on a conviction could not be exercised until all prospects of the conviction being quashed had been extinguished; that is, until all avenues of appeal had been exhausted; and
(iv)	the Minister failed to take into account considerations relevant to the exercise of her powers to suspend for "misbehaviour in the general sense" when she relied exclusively on Judge White’s findings as to Mr Clark’s behaviour as the basis for suspending him, rather than considering the evidence for herself.

63 At the trial before Gray J, senior counsel for Mr Clark also argued that if the Minister were to suspend her client by reason of a finding of misbehaviour in its "general sense", it was necessary for the Minister to make findings about, and to have regard to, the nature of the office of Commissioner of ATSIC, and how Mr Clark’s conduct bore upon his capacity to discharge the duties of that office ("ground (v)").

64 As that contention appeared to travel beyond the scope of the amended application, as it then stood, Gray J ordered the applicant to file and serve any proposed further amended application within a short period, and received written submissions from both parties in relation to the proposed amendment. His Honour reserved the question whether leave to amend by adding ground (v) should be granted.

THE DECISION OF THE PRIMARY JUDGE

65 Gray J dismissed the grounds that I have designated (i), (iii) and (iv). As Mr Clark has not sought to challenge his Honour’s findings with regard to those grounds, it is unnecessary to dwell upon them.

66 As regards ground (i), his Honour determined that the issue was one of construction of the ATSIC Act. Upon reviewing that Act, his Honour found, at [60], that "[t]here is nothing on the face of s 40 ... to suggest that the powers granted by it are exercisable only on a once-at-a-time basis". Indeed, there is some suggestion in his Honour’s reasons for judgment (see particularly [60] and [63]) that the course of action to initiate the second suspension process was especially apposite in the instant case. In his Honour’s view, two relevant events supervened the first suspension. Firstly, Mr Clark appealed his conviction by the magistrate to the County Court. By operation of s 86(1) of the Magistrates’ Court Act 1989 (Vic), the magistrate’s orders were set aside so as to permit the substitution of the County Court’s orders in their stead. This had the effect that "the material on which the first suspension had been based had ceased to be available ... to support a possible termination." Secondly, Mr Clark had initiated these proceedings contending that the first suspension process was invalid. One way for the Minister to overcome the alleged procedural defects was to discontinue the first suspension process and initiate a second process free from the alleged deficiencies.

67 With regard to ground (iii), Gray J held that it might be arguable that the Minister ought not terminate a Commissioner’s appointment while the prospect that a higher court might ultimately overturn a conviction remained alive. However, his Honour held, at [64], that "it is much more difficult to accept" that a Minister cannot commence a second suspension process by giving the Commissioner a "show cause" notice pursuant to s 40(2), and even proceeding to suspend him or her, "just because the conviction might be overturned on appeal". Effectively, his Honour held that the threshold at which the Minister was empowered to suspend Mr Clark was lower than that for exercise of the power to terminate. In arriving at that conclusion, he emphasised the "protective nature" of the power to suspend.

68 With respect to ground (iv), Gray J referred, at [69], to Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 ("Peko-Wallsend"). His Honour noted that the case stood as authority for the proposition that "the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account" (emphasis added). He observed, at [71], that the Minister was not subject to any such binding obligation in the circumstances, and noted as follows:

[The Minister] did not have the benefit that the County Court judge had of being able to hear oral evidence, and to form her own views about the credit of the witnesses. For her to undertake a detailed examination of the transcript of evidence given over several days, and to resolve conflicts in it, would have been a daunting task. In my view, the minister was not obliged to perform that task. It was open to her to take the view that the County Court judge was in a better position to make findings on the evidence than she was, and to accept his Honour’s express findings as her findings as to the circumstances of the offence. Indeed, for the minister to disregard the judge’s findings and to form her own view of the facts directly from the transcript of evidence might itself have been an error.

69 After granting leave to amend the application by adding ground (v), Gray J found in favour of Mr Clark on the two remaining grounds (ii) and (v). His reasoning on these grounds forms the basis of the Minister’s appeal to this Court. It is necessary, therefore, to set out his Honour’s reasoning on these points in some detail.

70 Gray J considered that the starting point in determining these grounds was the ascertainment of a definition of the term "misbehaviour".

71 His Honour considered that "misbehaviour" has no natural or universal meaning. Rather, its meaning would depend "entirely upon the context of the legislative provision in which the term is used": at [78]. After reviewing several leading authorities on the question of what conduct was capable of constituting misbehaviour, including the reports of the Parliamentary Commission of Inquiry Re the Honourable Mr Justice L K Murphy, Ruling on Meaning of ‘Misbehaviour’ (Canberra, 19 August 1986), and the Parliamentary Judges Commission of Inquiry, First Report (Brisbane, 1989), Gray J concluded, at [85], that where

‘misbehaviour’ is used with reference to the holder of an office, the content of its meaning is to be determined by reference to the effect of the conduct on the capacity of the person to continue to hold the office.

72 This analysis formed the basis of his Honour’s reasoning in relation to both the remaining grounds of review. In his Honour’s view, it was relevant to the question whether the 2002 Determination was within power. It was also relevant to the question whether Mr Clark’s conduct was capable of constituting so-called "general" misbehaviour, as the Minister was required to:

consider what, if any, impact the applicant’s conduct had on his ability to discharge those duties [of an ATSIC Commissioner], and the perceptions that would result as to the office of Commissioner if he were to continue to perform those duties after his conduct became known. (at [86])

73 Critical to his Honour’s assessment of the validity of the 2002 Determination was his conclusion that, in making a determination under s 4A(1) as to what conduct was to be taken to be misbehaviour for the purposes of the ATSIC Act, "[i]t was not open to the [M]inister to specify behaviour selected at large from the range of behaviour that might be viewed subjectively by some people as misbehaviour": at [86]. In his Honour’s opinion, the power to make a determination under s 4A(1) did not entitle the Minister to "extend" or "amplify" the meaning of "misbehaviour" beyond the meaning of "misbehaviour" in the ATSIC Act itself: at [86] and [101]–[102]. Thus, his Honour proceeded to assess whether cll 5(1)(k) and 5(5) of the 2002 Determination -- which provided that the behaviour of a person in the circumstances of being convicted, or being found guilty without a conviction recorded of an offence punishable by imprisonment was taken to be misbehaviour -- were consistent with the meaning of misbehaviour in the ATSIC Act, construed by reference to the functions of a Commissioner and the extent to which they would be impaired.

74 Gray J noted that the office of ATSIC Commissioner was a national one. However, whether particular behaviour might give rise to an offence punishable by a term of imprisonment would depend, in many cases, upon the particular State, or Territory, in which the behaviour took place. There was therefore "an element of chance in the application of cl 5(1)(k)": at [108]. His Honour additionally noted that it was "plainly possible for quite trivial behaviour" to be caught by cl 5(1)(k). He observed that police and prosecutorial discretion would play a large role in determining whether such trivial conduct would result in a person coming before a court to answer charges of offences capable of punishment by imprisonment, but that conversely, cl 5(5) had the effect that the exercise of judicial discretion not to record a conviction or in sentencing was effectively disregarded by the 2002 Determination. These factors led Gray J to conclude, at [108], that the 2002 Determination was therefore capable of an arbitrary or capricious operation.

75 Gray J also assessed the standards of behaviour effectively imposed upon officers of ATSIC by the 2002 Determination against the standards expected of holders of what his Honour considered to be comparable offices, including trade union officials, municipal councillors and various ministerial appointees: at [109]–[110]. His Honour considered that the standards required of ATSIC officers by the 2002 Determination were higher than "any other office established by legislation in Australia". Given that the preponderance of ATSIC officers were likely to be indigenous, this raised questions of potential racial discrimination: at [112].

76 His Honour referred to the International Convention on the Elimination of All Forms of Racial Discrimination ("CERD"). He discussed the principle of statutory interpretation that if legislation is capable of a reading consistent with Australia’s international obligations, then that is to be preferred over an alternative reading the effect of which would be to put Australia in breach of its obligations: at [113]. Furthermore, he considered the application of s 10 of the RDA, which provides:

10 Rights to equality before the law

(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

77 Gray J concluded that the effect of s 10 was that if s 4A(1) of the ATSIC Act and the 2002 Determination operated to render indigenous office-holders in ATSIC susceptible to removal for misbehaviour on lesser grounds than non-indigenous holders of comparable offices, both that section and the 2002 Determination should be read down to the extent necessary to give ATSIC officers the same rights as were enjoyed by the other office-holders: at [115]. His Honour also rejected an argument put by counsel for the Minister that "because the ATSIC Act is a special measure for the benefit of indigenous people, within the meaning of s 8 of the RDA, it follows that any provision within it cannot be subject to s 10(1)", holding instead that even if the ATSIC Act as a whole were characterised as a special measure, this does not have the consequence of exempting its individual provisions from compliance with s 10(1) of the RDA.

78 His Honour summed up his views on the validity of the 2002 Determination at [120]-[121] as follows:

My conclusion is that cl 5(1)(k) of the 2002 Misbehaviour Determination, both by itself and in conjunction with cl 5(5)(b), exceeds the power given to the Minister by s 4A(1) of the ATSIC Act to specify behaviour that amounts to ‘misbehaviour’ for the purposes of the ATSIC Act. Clause 5(1)(k), whether read alone or in conjunction with cl 5(5)(b), extends to conduct not capable of having any rational connection with the continued holding of each of the offices in ATSIC to which the 2002 Misbehaviour Determination relates. The specification of any conviction, or any finding of guilt, in respect of any offence punishable by imprisonment extends to include not only conduct that would not impair the ability of the person who engaged in it to continue to hold any of the relevant offices, but to conduct that indigenous people are more likely than non-indigenous people to be found to have engaged in. The clause is discriminatory against indigenous people, and among them on the basis of variations in the laws of the States and Territories of Australia. It imposes a higher standard of behaviour on those holding office under the ATSIC Act than is otherwise imposed by the law on those elected or appointed to similar offices under other legislation and is thereby racially discriminatory.

The power in s 4A(1) must therefore be read down so as to avoid conflict with the objects and purpose of the ATSIC Act, and so as to avoid racial discrimination, which would place Australia in breach of its international obligations and would bring into operation s 10(1) of the Racial Discrimination Act. Clauses 5(1)(k) and 5(5)(b) are not saved by the fact that they appear in a disallowable instrument but have not been disallowed by Parliament, by the fact that the processes that would be based on any finding of misbehaviour of the specified kind are discretionary, or on the basis that those processes are subject to parliamentary scrutiny.

79 His Honour then proceeded, at [130]-[131], to read down s 4A(1) of the ATSIC Act in the following terms:

the power in s 4A(1) can only be exercised validly to specify offences of sufficient seriousness and of such a character as to render a person convicted or found guilty of one of them impaired in continuing to hold the relevant office under the ATSIC Act. In other words, to determine whether a particular offence falls within the more restricted class, it is necessary to ask whether the offence is of such a kind that a finding that a person has committed it renders it inappropriate that the person continue to hold the office which he or she holds in ATSIC.

For the decision of the Minister to suspend the applicant from the office of Commissioner to be valid, the Minister would have to have considered the impact of the applicant’s conviction upon his capacity to continue to hold the office of Commissioner.

80 His Honour concluded that this was the same inquiry that the Minister would have to embark upon in order to ascertain whether an officer of ATSIC had committed misbehaviour in the "general sense" of that term.

81 Gray J then turned to ground (v). He concluded that the reasons furnished by the Minister on 19 February 2004 disclosed that she considered that a finding that Mr Clark’s conviction for an offence that fell within the literal terms of cl 5(1)(k) was effectively the beginning and the end of the question of whether he had committed misbehaviour. His Honour said at [134]:

It is plain that she did not consider the necessity to read down the words of cl 5(1)(k), so that they would include only those offences bearing upon the capacity of the applicant to continue to hold the office of Commissioner. In this respect, it is plain that the minister not only misdirected herself in law. She failed to take into account a relevant consideration ...

82 In relation to the Minister’s finding that Mr Clark could be suspended for having committed misbehaviour in the "general sense of the word", Gray J said at [135]:

The Minister’s reasons contain no discussion of the relationship between the concept of ‘misbehaviour’ and the duties and requirements of the holder of the office of Commissioner, in the light of the protective function of the power given by s 40 of the ATSIC Act and the need for the maintenance of the integrity of the commission. Nowhere in the minister’s reasons are there expressed any findings of fact on these questions. From the structure of the reasons, it seems clear that the minister did not take the view that she was required to consider issues of that kind before deciding whether to make a finding of misbehaviour. Rather, the minister appears to have assumed that it was only necessary to consider issues of that kind once she had made a finding of misbehaviour, and then only in relation to the question whether that misbehaviour warranted suspension of the applicant.

83 His Honour concluded at [136]:

In each case, for the reasons that I have given above, s 40(1) of the ATSIC Act required that the minister take into account as misbehaviour only such behaviour as bore upon the capacity of the applicant to continue to hold the office of Commissioner. By failing to take this into account, the minister failed
to take into account a relevant consideration.

84 On the basis of these findings, Gray J reasoned that the Minister’s decision of 22 January 2004 to suspend Mr Clark from office as a Commissioner of ATSIC was tainted by jurisdictional error, and therefore ought to be set aside.

THE NOTICE OF APPEAL

85 By notice of appeal filed on 17 September 2004, the Minister appeals from the whole of the judgment given by Gray J. The notice of appeal contains the following grounds:

2. His Honour erred in finding that the power to make a written determination under s 4A(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act) was limited by the extend of the meaning of ‘misbehaviour’ in the ATSIC Act itself, and was not a power to extend the meaning of the word ‘misbehaviour’ for the purposes of the ATSIC Act.

3. His Honour erred in finding that cl 5(1)(k) of the Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 (the Determination) exceeded the power given by the Minister by s 4A(1) of the ATSIC Act because it extended to conduct not capable of having a rational connection with the continued holding of the offices to which the Determination related.

4. His Honour erred in finding that cl 5(1)(k) of the Determination exceeded the power given to the Minister by s 4A(1) of the ATSIC Act because:

4.1. Aboriginal people are over-represented in the criminal justice system;

4.2. many ‘public order’ offences can result in sentences of imprisonment;

4.3. those offences are different between States and Territories; and

4.4. there is a discretion to prosecute those offences.

5. His Honour erred in finding:

5.1 that the effect of clause 5(1)(k) of the Determination was that those who hold office in ATSIC have expected of them a higher standard of behaviour than those who hold any other office established by legislation in Australia;

5.2 that cl 5(1)(k) of the Determination was inconsistent with the International Convention on the Elimination of All Forms of Racial Discrimination;

5.3 that s 10(1) of the Racial Discrimination Act 1975 operates to require the reading down of s 4A(1) of the ATSIC Act, or the reading down of clauses 5(1)(k) and 5(5)(b) of the Determination, to the extent that indigenous office-holders in ATSIC become liable to lose their offices only in circumstances comparable to those in which persons of other races would be liable to lose similar offices under other legislation; and/or

5.4 that clause 5(1)(k) should be read down so as to apply only to offences of sufficient seriousness and of such character as to render a person convicted or found guilty of such an office impaired in continuing to hold the relevant office under the ATSIC Act.

6. His Honour erred in finding that, in considering the application of cl 5(1)(k) of the Determination, the Appellant was required to consider the impact of the Respondent’s conduct and conviction on his capacity to hold office before she could make a finding of misbehaviour.

7. His Honour erred in finding that, in considering the application of the general concept of misbehaviour, the Appellant was required to consider the impact of the Respondent’s conduct and conviction on his capacity to hold office before she could make a finding of misbehaviour.

8. His Honour erred in finding that the Appellant failed to consider the impact of the Respondent’s conduct and conviction on his capacity to continue to hold the office of Commissioner.

9. His Honour erred in finding that it was difficult to see how the Appellant could reasonably have taken the view that the relevant conviction or conduct could have affected the capacity of the Respondent to represent the interests of Indigenous people or to engage in tasks of a Commissioner.

86 There was also a notice of contention filed on behalf of Mr Clark on 29 October 2002. I shall consider that notice of contention later in these reasons for judgment.

THE MINISTER’S CONTENTIONS ON THE APPEAL

87 Notwithstanding the elaborate nature of the notice of appeal, the Minister essentially advanced two arguments to this Court:

•	that the 2002 Determination was within power, and did not have to be read down; and
•	that in reaching her decision to suspend Mr Clark, the Minister had taken into account all relevant considerations, including how Mr Clark’s behaviour had affected his capacity to hold office as a Commissioner.

88 The Minister submitted that Gray J had erred in his construction of ss 4 and 4A(1) of the ATSIC Act when he held that any ministerial determination could not go beyond specifying examples of what misbehaviour in the context of that Act meant. She contended that these sections ought be read together as a grant of power to the Minister not only to clarify, but also to expand and amplify the ordinary meaning of misbehaviour for the purposes of the statute. That conferral of power was of the widest amplitude, limited only by the existence of parliamentary supervision of any such determination, and the need to ensure that it did not operate to deem conduct that could not conceivably amount to misbehaviour as falling within that extended definition. In other words, in the Minister’s submission, a determination would only be beyond power if it were so lacking in reasonable proportionality, when considered in the light of the purposes for which that power was conferred, as to not be "a real exercise" of that power. It was submitted that the 2002 Determination could not possibly be so characterised, and must therefore be within power.

89 The Minister also submitted that his Honour erred in concluding that the 2002 Determination had to be read down by reason of the operation of s 10 of the RDA. She argued that the 2002 Determination applied equally to both indigenous and non-indigenous office holders of ATSIC. Furthermore, it did not discriminate between Commissioners, all of whom, pursuant to s 31(1) of the ATSIC Act, had to be indigenous. Additionally, the Minister contended that the ATSIC Act’s character as a tool for the advancement of indigenous people rendered it a "special measure" within the meaning of s 8 of the RDA, and art 1(4) of the CERD, thus shielding both the ATSIC Act in its entirety and delegated legislation made under that Act against attack as racially discriminatory. Finally, on this point, the Minister submitted that there was no appropriate office to which the office of ATSIC Commissioner could be compared, such that a racially discriminatory standard could be identified and the remedial effects of s 10 of the RDA enlivened.

90 On the second issue, applicable to both misbehaviour under the 2002 Determination and so-called "general misbehaviour", the Minister submitted that the only matters that she was required by the ATSIC Act to consider were whether misbehaviour had been demonstrated, and if so, whether it warranted suspension. To the extent that she was required to have regard to the nature of the office of ATSIC Commissioner, the gravity of Mr Clark’s conduct, and the extent to which that conduct impaired his ability to continue in office, she had obviously done so when she read the written submissions on this very point that were made on behalf of Mr Clark. Finally, she submitted that if her reasons had failed to articulate the precise fashion in which she had turned her mind to this issue, this was due to their "conclusionary nature" rather than any defect in her decision-making process per se. A failure to set out in detail all aspects of the Minister’s thought processes was not, of itself, sufficient to indicate jurisdictional error on her part.

MR CLARK’S CONTENTIONS ON THE APPEAL

91 Mr Clark sought to support the judgment of Gray J, arguing that:

•	given the apparently imminent abolition of ATSIC, the appeal was moot and therefore futile;
•	his Honour had correctly identified the limitation on any determination made under s 4A(1) of the ATSIC Act, namely that as a piece of delegated legislation it could not extend the meaning of "misbehaviour" beyond its meaning in the particular statutory context;
•	his Honour was correct in his finding that aspects of the 2002 Determination were beyond power; and
•	his Honour was correct in identifying a gap in the Minister’s reasoning where she failed to consider the effect of the apparent misbehaviour on Mr Clark’s capacity to continue in office.

92 Mr Clark argued that Gray J had correctly found that the Minister was only entitled to make a determination that specified misbehaviour that was consistent with the meaning of that word in the context of the ATSIC Act. Therefore, the 2002 Determination, or parts of it, would be ultra vires if they purported to extend or amplify the meaning of misbehaviour beyond that comprehended by the ordinary meaning of that term, in its statutory context. He submitted that the very fact that cl 5(1)(k) could be seen as being readily susceptible to operating in an "arbitrary and capricious" fashion meant that it no longer bore any real and substantial connection to the purpose of the ATSIC Act, and was thus an invalid exercise of the grant of power.

93 With respect to the 2002 Determination’s consistency with the RDA, Mr Clark submitted that the right of ATSIC office holders being impaired was a political right to continue in elected public office, and that the elected offices of municipal councillors or trade union officials were offices where the comparators suffered no like impairment. He submitted therefore that Gray J did not err when he invoked s 10 of the RDA as a factor in his decision to read down the 2002 Determination so as to avoid any potentially racially discriminatory effect.

94 Finally Mr Clark submitted that in the same way that physical or mental incapacity to perform a job was not absolute, but rather relative to the specific attributes of the position under consideration, so too "misbehaviour" needed to be construed in the context of the particular nature of the office of ATSIC Commissioner. He submitted that the Minster’s reasons disclosed a failure on her part to turn her mind properly to the question of how the misbehaviour that she had determined had been demonstrated impacted upon his capacity to continue in office as an ATSIC Commissioner. He contended that it was by no means sufficient for the Minister to dispose of this issue by simply asserting that the misbehaviour was sufficiently serious as to warrant suspension. Rather, a series of further steps had to be taken, and the Minister’s reasons did not provide any indication that she had taken those steps.

MR CLARK’S NOTICE OF CONTENTION

95 Mr Clark also filed a notice of contention, arguing that Gray J had erred in finding that cl 5(1)(k) of the 2002 Determination ought to be read down, rather than severed in its entirety. He submitted that as the means by which the reading down could be accomplished were not apparent from the terms of the 2002 Determination itself, and the clause lent itself to the application of the "blue pencil test", it ought be severed from the 2002 Determination.

96 In response, the Minister argued that as the impugned clause was eminently capable of being read down in accordance with s 46(1)(b) of the Acts Interpretation Act 1901 (Cth), there was no requirement that it be severed.

97 During the course of oral argument in this appeal, senior counsel for Mr Clark also sought, and obtained, leave of the Court to add a second ground to the notice of contention filed on his behalf. This ground argued that Gray J had erred in failing to declare cl 5(1)(k) invalid in that it failed to specify any behaviour of a person within the meaning of s 4A of the ATSIC Act. Rather, by referring to a person being convicted of an offence, the clause specified behaviour of a court.

98 In response, the Minister argued that the language employed in the introduction to cl 5(1) -- which reads "the behaviour of a person in each of the following circumstances is taken to be misbehaviour" (emphasis added) -- was sufficiently broad to encompass the behaviour of a relevant ATSIC officer in circumstances that led to criminal charges being brought upon which that officer was ultimately convicted.

CONCLUSIONS

VALIDITY OF DELEGATED LEGISLATION

99 In considering the validity of the 2002 Determination, it is useful first to set out some principles that govern the judicial review of delegated legislation.

100 The subject is fully discussed in D Pearce and S Argument, Delegated Legislation in Australia (2^nd ed, 1999) ("Pearce"). As the learned authors point out, the courts have, for many years, considered it to be within their power to rule delegated legislation invalid. See for example Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell. This principle is so deeply entrenched that courts in this country do not generally find it necessary to refer to it in terms. Rather, they tend to proceed immediately to the question of whether the delegated legislation is valid.

101 Pearce suggests that the doctrine of separation of powers limits the scope of delegated legislation in two ways. First, it is not permissible for legislation to be made by a body other than the parliament without the authority of the parliament. Second, while the parliament may empower another body to alter the effect of an Act, that power will be strictly construed. The delegate will not be permitted to destroy the purpose of the empowering Act: State of New South Wales v Law (1992) 29 ALD 215.

102 Pearce notes, however, that despite the theory of separation of powers, the ability of a legislature to empower another body or person to make legislation has been recognised as an essential adjunct to the practice of government.

103 Pearce observes that the task that confronts a court in determining the validity of delegated legislation was described by Lord Diplock in McEldowney v Forde [1969] 2 All ER 1039 at 1068 as involving three separate steps. The court must first determine the meaning of the words used in the Act conferring power upon the body authorised to make subordinate legislation. It must next determine the meaning of the subordinate legislation, and finally, it must decide whether the subordinate legislation falls within the power so conferred.

104 Pearce goes on to say that delegated legislation may be invalid for any one of a number of reasons. Relevantly, it may be invalid because it purports to deal with a subject not within the scope of the power provided in the empowering Act. Alternatively, it may deal with such a subject, but in a manner that exceeds the prescribed limits within which the legislation must fall. As a general proposition, delegated legislation that falls foul of an empowering Act on these grounds is described as ultra vires.

105 Pearce adds that delegated legislation may be invalid because it is inconsistent with, or repugnant to, the empowering Act, or some other Act. It may be invalid because the power to make the delegated legislation has been exercised not for the purpose set out in the empowering Act, but for some other impermissible purpose. Finally, it may be invalid because its effect is so unreasonable that it cannot be regarded as falling within the contemplation of the legislature in enacting the empowering Act, or is not reasonably proportionate to the empowering provisions of that Act.

106 A number of these grounds of review plainly overlap. Some of them also provide a basis for reviewing administrative decisions. To that extent, cases concerned with broader issues of judicial review may be of some assistance. However, the full range of grounds of review of administrative decisions is usually not available to challenge delegated legislation. For example, such legislation cannot be impugned solely on the basis that the body responsible for its promulgation has taken into account irrelevant considerations.

107 It is important when considering the validity of a particular piece of subordinate legislation to have regard to its precise nature. Some delegated legislation takes the form of a guideline or policy that is authorised by an empowering Act. In other cases, the instrument in question may have a more directly legislative character.

108 It has been said that cases concerned with simple ultra vires are, of necessity, very much dependent on their own particular facts. In Footscray Corporation v Maize Products Pty Ltd [1943] HCA 15; (1943) 67 CLR 301 ("Footscray Corporation"), Rich J said at 308:

Authorities are of little use in determining the validity of a particular by-law. The appropriate steps are to construe the statute under which the by-law is made and then interpret it to ascertain whether it is within the ambit of the statute.

109 Nonetheless, it is possible to distil from the decided cases some principles that are of general application, at least where empowering provisions in a common form are utilised.

110 As a general proposition, the power to make delegated legislation is regarded as purposive. In R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 70, Stephen J said, at 204:

Where a Parliament confers powers they will seldom if ever be conferred in gross, devoid of purposes or criteria, express or implied, by reference to which they are intended to be exercised.

See also Lister v Camberwell City Council (1989) 69 LGRA 250 at 259, and Pearce at [12.10].

111 On the other hand, as Pearce notes, the power may appear to be open and unconstrained. In Sremcevic v Gurry (1994) 34 ALD 153, the power in question under the Banking Act 1959 (Cth) was to make regulations related to "foreign exchange". Even in such a case, the scope of the Act itself controlled the purposes for which regulations could be made. This may give a wider scope for review, based on lack of reasonable proportionality, in cases where purpose is more directly stated.

112 In other words, the power to make delegated legislation can only be exercised having regard to the purpose that underlies the empowering provision. Where that purpose is expressly stated, the task of the court in determining validity is to some extent made easier.

113 Commentators have noted that courts in general do not display a great willingness to overturn delegated legislation made by certain types of bodies. For example, Rich J in Footscray Corporation observed that municipalities and other representative bodies entrusted with power to make by-laws were ordinarily far better acquainted with the needs of the residents of their particular localities than judges, and were therefore better suited to deal with their requirements. In Kruse v Johnson [1898] 2 QB 91, Lord Russell of Killowen said, at 99, that by-laws should be benevolently interpreted, and added, more contentiously, that it should be assumed that they would be "reasonably administered".

114 It is for just this reason that some courts have cautioned against erecting hypothetical examples of abuse as a basis for finding by-laws invalid. Similar deference has been exhibited in relation to statutory instruments made by bodies established to run public enterprises: Cinnamond v British Airports Authority [1980] 1 WLR 582 at 589 per Lord Denning MR. Cases of this type must, however, be viewed in context. They involve subordinate legislation that is normally carefully drafted by expert bodies, answerable to a Minister, and relating to the operation of the entity that these bodies administer. It is by no means clear that a similarly deferential approach should be taken to an instrument such as the 2002 Determination, delegated legislation that lacks many of the hallmarks of the subordinate legislation identified above.

THE PARTICULAR LANGUAGE OF SECTION 4A

115 The empowering provision in the present case is s 4A of the ATSIC Act. As previously indicated, the section confers upon the Minister the power to make a "written determination" providing that specified behaviour is taken to be "misbehaviour" for the purposes of the Act. The section also permits the Minister to specify behaviour that is taken not to be "misbehaviour" for those purposes. It provides that a "determination" under the section is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth).

116 In enacting the empowering provision in these terms, the Parliament refrained from using any of a number of general empowering formulae commonly found in statutes. For example, a typical formulation is that which vests power in a designated authority to make regulations that are "necessary or convenient" for giving effect to a particular Act. There has developed a body of case law regarding the meaning to be attributed to expressions such as "necessary or convenient". See for example Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 ("Shanahan"), where it was held that a power conferred in such terms did not enable the authority by regulation to extend the scope or general operation of the enactment, but rather was to be regarded as strictly ancillary. In that context, the power would not support attempts to widen the purposes of the Act, or to add new and different means of carrying out or varying the plan that the legislature had adopted to attain its ends.

117 Other formulations that are sometimes used include "carrying out or giving effect to", "for the purposes mentioned in this Act", and "with respect to".

118 As a general rule, the more detailed the statute, the more limited the power to make regulations. The more general the statute, the more it is apparent that the legislature has deliberately left it to the executive to spell out the details in regulations: Morton v The Union Steamship Company of New Zealand Limited [1951] HCA 42; (1951) 83 CLR 402 ("Morton") at 410.

119 The power conferred by s 4A is specific. It allows the Minister to define the term "misbehaviour" for the purpose of considering suspension or termination. It is important to note that s 4A does not allow the Minister simply to make regulations "with respect to" suspension or termination. Having regard to the principles set out above, a power conferred in such limited terms should be construed in a more restricted manner than a broader formulation would allow.

REPUGNANCY, INCONSISTENCY AND "HENRY VIII" CLAUSES

120 It has been fairly standard practice, in the past, for empowering provisions to provide that regulations may be made that are "not inconsistent with this Act". As a matter of basic principle, such statutory limitations are probably unnecessary. Subject to one qualification, to which I shall return shortly, courts have always accepted that subordinate legislation will be invalid if it contradicts, or is repugnant to, the statute under which it is made.

121 It is important to note that the concept of repugnancy is often linked to the notion of ultra vires. It is debatable whether repugnancy is in fact simply a manifestation of ultra vires, or whether, as I think, it represents a separate and independent ground for invalidity. There may be a fine line between these two grounds of invalidity, but it is a line that should be maintained.

122 The one qualification to the principle of repugnancy is that the inconsistency may be authorised by an empowering Act. Such provisions were formerly known as "Henry VIII clauses", since they were supposed to reflect that monarch’s autocratic tendencies. See F Bennion, Statutory Interpretation (4^th ed, 2002) at 200.

123 Provisions of this type began to appear in the second half of the 19^th century. Bennion asserts that they are often used in England in relation to local Acts. See for example, s 303 of the Public Health Act 1875, c 303, which confers power to "repeal, alter or amend" by provisional order, any local Act "which relates to the same subject matter as this Act". Indeed, Bennion makes the point that it is not unknown for modern Acts to give power to amend, or even repeal, public general enactments by delegated legislation. In addition, sweeping general powers to increase, using delegated legislation, the amounts of fines imposed by Act, are widely conferred. This trend, in England, led Lord Scarman to describe as "startling" the power conferred by the Social Security Act 1975 (UK) to limit the scope of the Act by delegated legislation: see Lees v Secretary of State for Social Services [1985] AC 930 at 933.

124 One of the principal issues in this appeal is whether s 4A, the empowering provision, authorises the Minister to make a determination that exceeds the bounds of "misbehaviour", as that term would ordinarily be construed in the context of the Act. As previously indicated, s 4, which contains the definition of "misbehaviour", provides that the term has a meaning that is "affected by section 4A". Put simply, the Minister’s contention is that these two provisions, taken together, operate as a Henry VIII clause. Mr Clark, on the other hand, argues that the primary judge correctly rejected that contention. He argues that, these provisions, upon their proper construction, do not permit the Minister to make a determination that is in any way broader in scope than the concept of "misbehaviour", as it would be construed in the context of the Act.

125 This issue is by no means free from difficulty. In Morton, it was said at 410:

Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself.

The Court went on to say "the ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains".

126 As a general proposition, regulations will be invalid where they attempt to widen the purposes of the Act, to add new or different means of carrying them out, or depart from or vary the plan which the legislature has adopted to attain its end: Shanahan at 250. There are, of course, numerous examples of delegated legislation having been set aside under the broad purview of repugnancy: see for example Hamzy v Tricon International Restaurants [2001] FCA 1589; (2001) 115 FCR 78 where a regulation under the Workplace Relations Act 1996 (Cth) was struck down on this basis. It would, however, be rare for a subordinate instrument to directly contradict a provision contained in an empowering Act. Nonetheless, it has happened. See for example Macris v Lucas [1971] SASR 329.

127 More commonly, any repugnancy will be indirect. It will be established on the basis that the delegated legislation in some way runs counter to the general aims of the Act. Examples include Morton, R v Commissioner of Patents; Ex parte Martin [1953] HCA 67; (1953) 89 CLR 381, and Ira, L & AC Berk Ltd v The Commonwealth of Australia (1930) 30 SR (NSW) 119. In England, it has been held that a by-law or statutory instrument will struck down for "repugnancy" when it is either in direct conflict with a statute, or where it deviates materially from the general law of the land in imposing "burdensome prohibitions": Powell v May [1946] KB 330. See generally S de Smith, Woolf and J Jowell, Judicial Review of Administrative Action (5^th ed, 1995) at 13-052. It must be noted, however, that regulations can supplement the provisions of an empowering Act without necessarily falling foul of the repugnancy principle: Ex parte Kauter (1904) 4 SR (NSW) 209.

128 Mr Clark conceded that the Minister had the power, under the Act, to make a determination that "clarified" the meaning of "misbehaviour". He submitted, however, that the Minister had no power to define that term to include conduct that fell outside its ordinary and natural meaning, in the context in which the term was used. The effect of a determination was simply to obviate the need for the Minister to consider separately, on any given occasion, whether behaviour falling within one of the heads specified amounted to misbehaviour. That did not give the Minister carte blanche to declare that conduct which on no conceivable view could affect the fitness of a Commissioner to hold office amounted to misbehaviour. For example, the Minister could not declare conduct such as "wearing a jumper on Mondays" or "smiling during office hours" to be "misbehaviour".

129 Mr Clark noted that every form of misconduct specified in the 2002 Determination, apart from that identified in cl 5(1)(k), had at least a rational connection with the capacity of a Commissioner to hold office in ATSIC. The various forms of misconduct included bribery, and influencing members of Aboriginal bodies. Conduct of that kind had an obvious impact upon, and capacity to affect, public confidence in ATSIC. However, the matters potentially within cl 5(1)(k) went far beyond any such connection. It was beyond power for the Minister to "deem" such conduct misbehaviour.

130 Mr Clark denied the Minister’s contention that the approach taken by the primary judge had the effect of rendering s 4A of little use. Certainly, his Honour’s analysis meant that the Minister could only specify behaviour that already fell within the meaning of that term under the Act. However, in Mr Clark’s submission, that did not render the specification "pointless". The specified behaviour would still operate as a "checklist" of conduct that amounted to misbehaviour, though of course there could also be non-specified conduct that fell into the same category.

131 In my view, the Minister’s contentions on this issue ought to be accepted. As I have already noted, there is no reason in principle why delegated legislation cannot operate to extend the meaning of a term in an Act. The question is purely one of statutory construction. Does the power to make a determination, conferred upon the Minister, authorise her to extend the meaning of "misbehaviour" beyond the meaning that it would normally be accorded in the context of the Act?

132 The use of the term "has a meaning affected by" is a drafting device that is now found in a number of Commonwealth statutes. The Minister cited the following examples: Superannuation Industry (Supervision) Act 1993 (Cth), s 10; Quarantine Act 1908 (Cth), s 5; and Age Discrimination Act 2004 (Cth), s 5. To those examples may be added: Australian Securities and Investments Commission Act 2001 (Cth), ss 5 and 254; Copyright Act 1968 (Cth), s 189; Corporations Act 2001 (Cth), ss 9, 761A, 880B, 985A, 1011B, 1042A, 1371, 1410 and 1443; Crimes Act 1914 (Cth), ss 3C, 23WA and 50AA; Environmental Protection and Biodiversity Act 1999 (Cth), s 528; Higher Education Funding Act 1988 (Cth), ss 34, 98A, 98P and 99; Income Tax Assessment Act 1936 (Cth), ss 102UB, 124ZZR, 160APHD, 160AQCBA, 177EA, 202A, 220AC, 327B, Sch 2F and Sch 2G; Spam Act 2003 (Cth), s 4; and Workplace Relations Act 1996 (Cth), s 170VA. There are, in addition, many other Commonwealth Acts that now adopt this definitional technique. So far as I can tell from my own research, this particular technique is unique to Australia. It has not been used in the United Kingdom.

133 Despite the fact that there are now numerous examples of the use of this drafting device, counsel were not able to point to any authority bearing upon the question whether, as a matter of construction, this formula allows for an expanded meaning to be given to a word beyond the ordinary meaning that would otherwise be accorded to it.

134 It is clear, at least as a matter of principle, that a power to expand the meaning of a term defined in an Act by the use of delegated legislation must be conferred in suitably broad terms. A general power to make regulations that are "necessary and convenient" is, not of itself, likely to be sufficient: see Morton and Shanahan. However, s 4A goes well beyond a "necessary and convenient" regulation making power.

135 If the words "affected by" are to be given any sensible interpretation, they must contemplate the expansion or contraction of the meaning that would otherwise be applicable. The word "affected", in its ordinary and natural sense, means "influenced", "altered", or "shaped". It is not merely a synonym for "touching", "relating to" or "concerning": Re Bluston [1966] 3 All ER 220 at 225-6 per Winn LJ. It is plainly apt to include the power to modify, whether by widening or by narrowing, the ordinary meaning of any word that is "affected".

136 As I have already indicated, the primary judge held that the Minister’s power to specify behaviour that was taken to be "misbehaviour" under s 4A "was limited by the extent of the meaning of ‘misbehaviour’ in the ATSIC Act itself". More particularly, his Honour held that s 4A did not confer power to extend the meaning of that term. With respect, I disagree with his Honour’s reasoning regarding this issue.

137 There is another point to note. Section 4A includes the phrase "is taken to be". That is a "deeming" provision. It has the effect of giving meaning to a term that it might not otherwise have had: Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641 at 655; and Maroney v The Queen [2003] HCA 63; (2003) 216 CLR 31 at 35.

138 As noted above, it was submitted on behalf of the Minister that if the primary judge’s approach to s 4A were accepted, it would render that section of little use. On that view, the Minister could only specify behaviour that already fell within the meaning of "misbehaviour" under the Act. The prescription of behaviour under the 2002 Determination would therefore be a pointless task, providing little or no assistance to anyone wishing to know the meaning of that term. It might even be misleading. There is substance in that submission. There is also considerable force in the Minister’s submission that his Honour’s construction of s 4A(1) does not sit comfortably with the corresponding power under s 4A(2) to make a determination providing that specified behaviour is "taken not to be misbehaviour". It would be no less repugnant to the purposes of the Act for the Minister to give the meaning of "misbehaviour" a narrower meaning than it would ordinarily have under the Act, than to extend the meaning of that term.

139 My conclusion that the primary judge erred in his construction of s 4A, and therefore erred in this limb of his reasoning, does not, however, save the Minister’s decision to suspend Mr Clark. There were at least two other challenges to the validity of cl 5(1)(k) upheld by his Honour. It is necessary, therefore, to consider the correctness, or otherwise, of his findings in relation to those challenges.

REASONABLE PROPORTIONALITY

140 The primary judge concluded that cl 5(1)(k) could not be sustained because it operated, or had the potential to operate, arbitrarily or capriciously. In effect, this was a separate and distinct basis for holding that the Minister’s decision could not be supported insofar as it rested upon the 2002 Determination.

141 It is now tolerably clear that delegated legislation, made pursuant to a purposive empowering provision, will be struck down if it fails the test of reasonable proportionality. In some of the authorities, this principle is referred to in terms of "arbitrariness", "capriciousness" or "unreasonableness". While these concepts can, and sometimes are, distinguished from "reasonable proportionality", they can also be regarded as indicia of a failure to satisfy that test. The primary judge did not use the term "reasonable proportionality". However, his finding that the relevant clause was "capable of operating arbitrarily or capriciously" was tantamount to a finding that it failed that test.

142 Pearce contends that there is a distinction between unreasonableness and lack of reasonable proportionality. It is argued that unreasonableness may be more difficult to establish, bearing in mind that it applies to all delegated legislation, and not merely that which is made pursuant to an empowering provision that is purposive. Pearce argues that when it comes to proportionality, there is a slightly lower threshold of invalidity. The question then is whether the delegated legislation is capable of being reasonably considered to be appropriate and adapted to achieve the prescribed purpose. A finding that the impugned clause is capable of operating arbitrarily or capriciously would seem to satisfy both tests, but certainly would meet the latter. See generally M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3^rd ed, 2004) ("Aronson") at 342-4 and 347-8, where it is suggested that Australian courts have generally been more receptive to "proportionality" as a basis for reviewing delegated legislation than they have to the concept of "unreasonableness".

143 In Brunswick Corporation v Stewart [1941] HCA 7; (1941) 65 CLR 88, Starke J noted, at 97, that it had been argued that:

... the by-law is beyond power for other reasons or is uncertain, that is, does not contain adequate information as to the duties of those who are to obey it ... or is unreasonable, that is, in this connection, so oppressive or capricious that no reasonable mind can justify it...

144 His Honour did not criticise this formulation as a proper basis for challenging the validity of the by-law in question, although he held that it was valid.

145 In Mixnam’s Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214, Diplock LJ, (in a passage that was apparently approved by the House of Lords, see Chertsey Urban District Council v Mixnam’s Properties Ltd [1965] AC 735) observed at 237-8 that:

... the kind of unreasonableness which invalidates a by-law is not the antonym of "reasonableness" in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say; "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires"...

146 In Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381 ("Austral Fisheries"), a Full Court of this Court upheld a decision invalidating the exercise of the Minister’s power under a provision of the Fisheries Act 1952 (Cth). The Minister’s decision involved the allocation of units of fishing capacity. It was held that the Minister’s power had been exercised capriciously and irrationally, and in a manner capable of producing absurd results.

147 In that case, Lockhart J set out at some length the circumstances in which delegated legislation would be invalid on the ground of unreasonableness. His Honour said at 384:

Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislating authority to enact laws.

See also the joint judgment of Beaumont and Hill JJ at 400-1.

148 Though Lockhart J spoke of "unreasonableness", his Honour plainly had in mind the considerations that now tend to be subsumed within the notion of "reasonable proportionality". The move from "unreasonableness" to "lack of reasonable proportionality" appears linked to the increasing use by the High Court of the latter concept in certain aspects of constitutional law: see generally B Selway, "The Rise and Rise of the Reasonable Proportionality Test in Public Law" (1996) 7 Public Law Review 212. This appears to reflect a divergence from the approach in the United Kingdom, where "unreasonableness" per se is still regarded as a ground for invalidating subordinate legislation. See generally HWR Wade and CF Forsyth, Administrative Law (8^th ed, 2000) at 860-2. Nonetheless, there are dicta, even in this country, that suggest that regulations can be challenged purely on the basis of unreasonableness: De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502. Likewise, see Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300 at 467-8 per Tamberlin J.

149 A court will not easily be persuaded to strike down delegated legislation on the ground of lack of reasonable proportionality. The reason is plain. Courts are naturally wary of the dangers of becoming embroiled in merits review under the guise of judicial review. Unless "proportionality", as a basis for challenge, is kept strictly in check, there is a risk that courts will transgress their legitimate function. In the context of challenges to by-laws, there is an additional consideration favouring judicial restraint. Courts must give full weight to the fact that by-laws are made by local government bodies, whose members are democratically elected and directly accountable to their constituents. Despite these considerations, courts must always be prepared to perform their constitutional duty, and declare invalid delegated legislation that has been unlawfully promulgated.

150 There are plainly some analogies to be drawn between delegated legislation that lacks reasonable proportionality and delegated legislation that is logically fallacious. There are several recent examples of logical fallaciousness in such legislation resulting in its invalidity. One such example is the formula used to allocate catch in the Austral Fisheries case. See also La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, but note Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 at 578-80.

151 However, the principle goes beyond logical fallaciousness. Delegated legislation that has the potential to operate arbitrarily or capriciously has, on occasion been struck down, and solely on that basis.

152 Some commentators have suggested that there should be a presumption that delegated legislation, no matter how oppressive it has the potential to be, will be enforced with restraint. There can be no justification for such an approach, either empirically or in principle. A belief that those entrusted with statutory power will always exercise that power in an appropriate way, is ultimately destructive of the rule of law. As Pearce notes at 238:

If a legitimate interpretation of a by-law can impose an unreasonable obligation on a person, it would seem that the by-law falls within the test of invalidity ... It is no answer that the by-law may be reasonably enforced. Those subject to the actions of officials know too well the use that can be made of power to harass or the pedantic view that can be taken of legislation. The question asked should be what can be required under the by-law; not what can it be expected the enforcing authority will require. The latter is speculative, and there can be no certainty that the administering authority will enforce the by-law reasonably...

153 Insofar as the "reasonable proportionality test" has come to be used as a basis for invalidating delegated legislation, it should be noted that there are other limitations upon its applicability. Selway J has suggested, by analogy with recent constitutional interpretative developments, that such legislation can only be struck down on this ground if the relevant power to make such legislation is "purposive".

154 A "purposive power" is one where the criterion of validity is that the law-maker achieve a certain purpose or object. Under the Constitution, the High Court has held that there are at least two such powers – external affairs and defence. The validity of a statutory provision purportedly supported by one or other of these powers is determined by whether that provision can be reasonably considered as "appropriate and adapted" to carrying out an object that impresses it with the character of the particular power. See for example Commonwealth v Tasmania ("Tasmanian Dam case") [1983] HCA 21; (1983) 158 CLR 1 at 172 and 179 (per Murphy J), 232 (per Brennan J) and 259 (per Deane J); Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 at 592-3 (per Brennan J); and Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 57 (per Gaudron J).

155 The validity of delegated legislation that stems from empowering provisions that are purposive in nature is determined in much the same way. In Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142, Dixon J said at 155:

To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject. The true nature and purpose of the power must be determined, and it must often be necessary to examine to operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not have reasonably have been adopted as a means of attaining the ends of the power. In such a case, the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power.

156 Early statements of the proportionality test, in its application to delegated legislation, are to be found in the Tasmanian Dam case. Deane J said, at 264-5, that the regulations under challenge in that case would only be valid, under the relevant empowering provision, if they "were capable of being reasonably considered to be appropriate and adapted to giving effect to the Convention" (that being the Convention for the Protection of the World Cultural and Natural Heritage).

157 A similar approach was adopted in South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161. In the joint judgment of Wilson, Dawson, Toohey and Gaudron JJ, their Honours observed, at 167-8, that the parties were agreed that the test of validity was whether the regulation was capable of being "considered to be reasonably proportionate to the end to be achieved". They noted that the "line between the opposing arguments" was "finely drawn", and that, in the end, the answer was "largely a matter of impression". They stressed that it was "not enough that the court itself thinks the regulation inexpedient or misguided". It had to be "so lacking in reasonable proportionality as not to be a real exercise of the power".

158 In Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 ("Dover Fisheries"), Gummow J, in a scholarly and detailed analysis, discussed "reasonable proportionality" as a criterion for assessment of validity, in both constitutional and administrative law. His Honour’s observations are lengthy, but bear repeating in full. He said at 575-8:

The concept of "reasonable proportionality" as a criterion for assessment of validity in constitutional and administrative law appears to have entered the stream of the common law from Europe and, in particular, from the jurisprudence of the Court of Justice of the European Communities and the European Court of Human Rights. If a State is to justify interference by its executive, legislature or courts with the freedom of expression guaranteed by Article 10 of the European Convention For The Protection Of Human Rights And Fundamental Freedoms, the interference must correspond to "pressing social need" and be "proportionate" to the "legitimate aim" pursued by the State: Sunday Times v United Kingdom (1979) 2 EHRR 245 at 277-278, 280. The validity of national legislation restricting trade and working hours on Sundays, in the light of Art 30 of the EEC Treaty (which prohibits between member States "quantitative restrictions on imports and all measures having equivalent effect") is assessed by application of standards of "necessity" and "proportionality": see the litigious saga of the British Sunday trading legislation disclosed in Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227 at 277-278, and Stoke-on-Trent City Council v B & Q Plc [1993] 2 All ER 297. Here, "proportionality" has been said to mean that, "in short, a reasonable relationship must exist between aims and means": Koopmans, "European Public Law: Reality and Prospects" [1991] PL 53 at 58.

In English administrative law, it seemed that the concept of proportionality might be adopted as a ground of review of alleged abuse of statutory discretion, perhaps as an adjunct to Wednesbury unreasonableness: see the discussion in Beatson and Matthews, Administrative Law: Cases and Materials (2nd ed, 1989); Cane, An Introduction to Administrative Law (2nd ed, 1992), pp 211-212. However, in R v Secretary of State for the Home Department; Ex parte Brind [1991] UKHL 4; [1991] 1 AC 696 at 762, Lord Ackner said:

"Clearly a decision by a minister which suffers from a total lack of proportionality will qualify for the Wednesbury unreasonable epithet. It is, ex hypothesi, a decision which no reasonable minister could make. This is, however, a different and severer test.

Mr Lester is asking your Lordships to adopt a different principle - the principle of ‘proportionality’ which is recognised in the administrative law of several members of the European Economic Community. What is urged is a further development in English administrative law, which Lord Diplock viewed as a possibility in Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1985] AC 374 at 410.

In his written submissions, Mr Lester was at pains to record ... that ‘There is a clear distinction between an appeal on the merits and a review based on whether the principle of proportionality has been satisfied’. He was prepared to accept that to stray into the realms of appellate jurisdiction involves the courts in a wrongful usurpation of power. Yet in order to invest the proportionality test with a higher status than the Wednesbury test, an inquiry into and a decision upon the merits cannot be avoided ... The European test of ‘whether the "interference" complained of corresponds to a "pressing social need"’ (Sunday Times v United Kingdom (1979) 2 EHRR 245 at 277) must ultimately result in the question ‘Is the particular decision acceptable?’ and this must involve a review of the merits of the decision. Unless and until Parliament incorporates the Convention into domestic law ... there appears to me to be at present no basis upon which the proportionality doctrine applied by the European Court can be followed by the courts of this country."

Lord Lowry (at 766-767) said that to introduce the proportionality doctrine would lead to abuse of the supervisory jurisdiction of the courts. Lord Templeman (at 756) seemed to treat proportionality as an aspect of the Wednesbury doctrine. Lords Bridge (at 749) and Roskill (at 750) were non-committal.

However, in Australia the proportionality doctrine has taken root and, indeed, extended its reach into the heartland of federal constitutional law. First, the rather special and "purposive" nature of the legislative power with respect to external affairs in its application to existing and reasonably apprehended international obligations, led to its confinement to what may reasonably be regarded as appropriate means for implementation of the obligation: Commonwealth v Tasmania (the Tasmanian Dam case) [1983] HCA 21; (1983) 158 CLR 1 at 172, 232-233, 259-261; Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261 at 295-296, 303, 311-312, 326, 336. Secondly, the doctrine has been applied to the operation of constitutional prohibitions or restraints upon the scope of legislative power, whether these prohibitions or restraints arise expressly, as with s 92 of the Constitution, (Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436 at 473-474) or impliedly (Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 50, 76-77, 94-95). Thirdly, the doctrine has been applied generally as a criterion of validity of provisions which fall outside the "core" of the subject matters of certain of those legislative powers in s 51 which are not "purposive" powers; see, as to the trade marks and corporations powers, Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79 at 99-100, and as to the conciliation and arbitration power, Nationwide News Pty Ltd v Wills (supra) at 28-31 per Mason CJ, Dawson J contra at 88-89.

In Nationwide News at 30-31, Mason CJ said:

"Davis establishes two propositions. First, that, even if the purpose of a law is to achieve an end within power, it will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of an end within power, ie, unless it is capable of being considered to be reasonably proportionate to the pursuit of that end. Secondly, in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression."

These propositions are important, but as yet scarcely explored by the Courts when dealing with the immediately significant operation of the concept for these appeals. This is as a test of validity of delegated legislation. In that context, one ordinarily would not characterise the steps taken by the delegate of the Parliament by use of criteria, such as Wednesbury unreasonableness, which are concerned with the exercise of statutory discretion and administrative decision-making. The issue in the present context is whether the law made by the process of delegation is valid, not whether an administrative decision is reviewable for error.

In Tanner (supra) at 165, Wilson, Dawson, Toohey and Gaudron JJ said:

"In the course of argument, the parties accepted the reasonable proportionality test of validity (cf Deane J in Commonwealth v Tasmania (the Tasmanian Dam case) [1983] HCA 21; (1983) 158 CLR 1 at 260), namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. However, they differed in the answers to which their application of the test led. The same test, in relation to a power limited to regulation, was expressed by Dixon J in Williams [v City of Melbourne] [1933] HCA 56; (1933) 49 CLR 142 at 156, as being, in substance, whether the regulation goes beyond any restraint which could be reasonably adapted for the prescribed purpose."

Earlier, in Coulter v The Queen (supra), Mason CJ, Wilson and Brennan JJ had also treated Williams v City of Melbourne [1933] HCA 56; (1933) 49 CLR 142 as authoritative, asking whether the Rules of Court in question were "a reasonable means of attaining the ends of the rule-making power". See also Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 309-311, 327-329.

These observations in the High Court indicate that whatever may be the sweep of the proportionality principle in federal constitutional law, when the question of validity is concerned with delegated legislation made pursuant to a law of the Parliament whose validity itself is not impugned, the proportionality principle is differently focused. The observations by their Honours further suggest that here at least there has been no significant shift in doctrine and, indeed, that the subject still is controlled by what was said by Sir Owen Dixon over 50 years ago; see the discussion by Peter Bayne in his note "Reasonableness, Proportionality and Delegated Legislation" (1993) 67 ALJ 448 esp at 449-450. The fundamental question is whether the delegated legislation is within the scope of what the Parliament intended when enacting the statute which empowers the subordinate authority to make certain laws: see Austral Fisheries at 383-384, per Lockhart J.

The treatment by four members of the High Court in Tanner of the remarks of Dixon J in Williams as identifying what they understood by the proportionality criterion as applied to the validity of delegated legislation, brought with it, in my view, the subsequent elaboration by Dixon J of his views. In the joint judgment, to which Dixon CJ was a party, in Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250, the following was propounded. A power such as that in s 25(1) of the Act does not authorise the making of regulations which vary or depart from the positive provisions of the Act, or which go outside the field of operation which the Act marks out; such a power does not support attempts to widen the purposes of the Act, to add new and different means of carrying them into effect, or to depart from or vary the plan which the legislature has adopted to obtain its ends. These are indicia which assist in deciding the general question of whether the regulations in question are a reasonable means of attaining the ends of the legislative delegation of power.

Looked at in this way, I conclude that O 79 and O 80 do not fall outside power. The licensing system of which they are a part cannot be described as going beyond any restraint which could reasonably be adopted for the prescribed purpose.

159 In the same case, Cooper J also discussed the proportionality test as it applied to delegated legislation. His Honour expressly distinguished empowering provisions that were purposive, and those cast in non-purposive terms. He held that any subordinate legislation made under a purposive empowering provision had to be "reasonably proportionate". However, subordinate legislation made under a non-purposive empowering provision simply had to have a "real and substantial connection" with the subject matter of the grant of power.

160 Pearce provides a number of recent examples of the application of the "reasonable proportionality" test to strike down delegated legislation. They include: Re Gold Coast City Council By-laws [1994] 1 Qd R 130; Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314; and Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGERA 288. Interestingly, and perhaps more relevantly for present purposes, Pearce also refers to House v Forestry Tasmania [1995] TASSC 95; (1995) 5 Tas R 169. There, the Tasmanian Full Court struck down, as disproportionate, a health and safety regulation that purported to impose absolute liability for certain conduct.

161 It may be accepted that these cases are very much the exception, rather than the rule. Most challenges based upon the reasonable proportionality test have failed. Nonetheless, each case must be decided upon its own particular facts, and as the High Court noted in Tanner, they often involve matters of impression.

162 In my opinion, the primary judge correctly held that cl 5(1)(k) did not meet the requirements of reasonable proportionality. The empowering provision under which the 2002 Determination was made seems to me to be properly characterised as "purposive". It was not designed as an end in itself, but rather to facilitate a process by which some certainty, and consistency, could be injected into the possible removal of ATSIC Commissioners. Although s 4A does not say so in terms, the power that it conferred upon the Minister was intended to enable certain acts to be characterised as "misbehaviour" without the need for them to be given individual consideration.

163 I agree with his Honour that the term "misbehaviour" is inherently vague, and lacks precision. Dictionary definitions are unhelpful, and say little, if anything, about how that term is to be understood in any particular situation. Examples of cases where "misbehaviour" has been established are generally unhelpful. In this area context is all-important. When an Act provides for the removal of a statutory office-holder on the ground of "misbehaviour", the meaning to be accorded to that term must be gleaned from its statutory context.

164 His Honour said that he gained some assistance from s 72(ii) of the Constitution in determining what might amount to "misbehaviour". Plainly, in that context, "misbehaviour" is not confined to conduct of a criminal nature. As virtually all commentators who have considered this matter agree, the conduct to which attention is directed must raise doubts about the suitability of a Chapter III judge to continue in office. In other words, the conduct in question must have the potential to undermine the standing of the courts, or destroy public confidence in the judge’s ability to continue to perform his or her functions. See generally, the Parliamentary Commission of Inquiry Re the Honourable Mr Justice L K Murphy, Ruling on Meaning of Misbehaviour (19 August 1986), and the Parliamentary Judges Commission of Inquiry, First Report (Queensland, 1989).

165 It was in the light of observations by the various parliamentary commissions that his Honour identified the essential elements of "misbehaviour", in the context of suspension or termination of a ATSIC Commissioners. As his Honour said at [85]:

It is clear from these expressions of opinion that, in order to constitute misbehaviour by the holder of an office, the conduct concerned need not be criminal conduct and need not occur in the course of the performance of the duties of the office. For present purposes, the important proposition to be drawn from these expressions of opinion is that, in a case in which the term ‘misbehaviour’ is used with reference to the holder of an office, the content of its meaning is to be determined by reference to the effect of the conduct on the capacity of the person to continue to hold the office. In turn, the capacity to continue to hold an office has two aspects. The conduct of the person concerned might be such that it affects directly the person’s ability to carry out the office. Alternatively, or in addition, it may affect the perceptions of others in relation to the office, so that any purported performance of the duties of the office will be perceived widely as corrupt, improper or inimical to the interests of the persons, or the organisation, for whose benefit the functions of the office are performed. In either case, the danger is that the office itself will be brought into disrepute as a result of the conduct of its holder. If that is likely to be the case, then the conduct is properly characterised as misbehaviour for the purposes of the relevant legislation.

166 This conclusion had two important consequences. The first was that the Minister was required to consider the nature of the office of ATSIC Commissioner, and the duties attached to that office, when she considered whether Mr Clark was guilty of "misbehaviour" in its general sense. That is a matter to which I shall shortly return. The second was that in exercising the power, pursuant to s 4A(1), to specify conduct that was taken to be misbehaviour for the purposes of the Act, the Minister was limited, not just by the meaning of "misbehaviour" in the Act itself, but also by the need to avoid a definition that was not reasonably proportionate.

167 As I have already observed, the primary judge found that cl 5(1)(k) was capable of operating arbitrarily or capriciously. As a first step towards that conclusion his Honour noted the enormous width of the clause. He observed that the word "offence" was not defined in the Act. He also observed that cl 5(1)(k) extended to include any offence that carried a term of imprisonment under the law of any State or Territory, and not just offences under Commonwealth law. As his Honour correctly noted, the Minister had plainly assumed that a conviction under State law was sufficient. She acted on that basis in finding that Mr Clark’s conviction under the Summary Offences Act 1966 (Vic) amounted to misbehaviour.

168 His Honour next considered the laws of the various States and Territories in order to see what sorts of offences carried potential sentences of imprisonment. For that purpose, and sensibly, he focussed upon "public order" offences. He noted that in Victoria and Tasmania offences involving intoxication in public were punishable by imprisonment. He also considered "nuisance" offences, involving offensive behaviour or language, disorderly conduct, public nuisance or other disturbance of the peace, or loitering, all of which were punishable by imprisonment. He noted that in some jurisdictions, imprisonment was available for obstructing or resisting police. He observed that consorting remained an offence punishable by imprisonment in New South Wales and the Northern Territory. He also observed that consorting with thieves, prostitutes or vagrants was punishable by imprisonment in South Australia and Tasmania, and that begging remained an offence punishable by imprisonment in Tasmania and the Northern Territory.

169 His Honour drew two conclusions from his survey of the range of offences that carry imprisonment. The first was that it was possible for the same conduct to be an offence carrying a potential sentence of imprisonment in one State or Territory, but to be an offence punishable by fine only, or not an offence at all, in another State or Territory. There was therefore an element of chance, or arbitrariness, in the application of cl 5(1)(k) to ATSIC Commissioners. The second was that it was plainly possible for "quite trivial conduct" to be deemed misbehaviour under the 2002 Determination. Indeed, cl 5(5)(b) made it clear that even trivial offences were to be regarded as "misbehaviour", given that a finding of guilt, leading to a discharge without conviction, would still be sufficient to satisfy cl 5(1)(k). As his Honour observed at [108]:

In effect, whether a person is found guilty of misbehaviour for the purposes of cl 5(1)(k) might well depend upon the exercise of a discretion to prosecute in respect of conduct found by a court not to be sufficiently serious even to warrant a conviction. In this respect, it is capable of operating arbitrarily or capriciously.

170 The Minister challenged his Honour’s reasoning on this issue. She contended that cl 5(1)(k), even when read in conjunction with cl 5(5)(b), had a "real, substantial and direct connection with the subject matter of the power to determine what is and is not misbehaviour". Her counsel referred to the judgment of Hill J in One.Tel Limited v Australian Communications Authority [2001] FCA 54; (2001) 110 FCR 125 at 144 in support of the contention that a "real, substantial and direct connection" was all that was required to establish validity.

171 For reasons already given, I reject that contention. Delegated legislation made pursuant to a purposive empowering provision will be invalid if it fails the test of reasonable proportionality. Admittedly this is a "stringent test". It will only be satisfied in "an extreme case": Austral Fisheries at 384 per Lockhart J, and at 401 per Beaumont and Hill JJ. I agree with the primary judge that the present case is just such a case.

172 It is unnecessary, for present purposes, to explore in detail the historical origins of the importation of the European concept of proportionality into English public law, still less its derivations in Australian public law. As previously indicated, Gummow J explored these matters in Dover Fisheries. See also Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1985] AC 374 at 410 per Lord Diplock, and Australian Broadcasting Tribunal v Bond (1990) 176 CLR 321 at 367 per Deane J. Aronson observes that Australian law has long acknowledged some room for a proportionality principle in relation to judicial review of subordinate legislation for being ultra vires, and the cases that are cited at 344 of that text make good that proposition. Indeed, a number of commentators argue that proportionality has greater explanatory force than the question-begging notion of unreasonableness, whilst cautioning against allowing too great acceptance of that ground as having the potential to lead into merits review. In Bruce v Cole (1998) 45 NSWLR 163 at 185 Spigelman CJ acknowledged the validity of the use of proportionality in constitutional law, and in challenges to subordinate legislation. However, he said that in the broader context of judicial review of administrative action, it was a concept "at the boundaries of accepted administrative law". In England, there is less reticence associated with the use of the concept. It is recognised that proportionality is concerned with the relationship between ends and means. An example sometimes given of a disproportionate act is that of using a sledgehammer to crack a nut. See generally Aronson at 345-8. See also Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 670 per Callinan J, and Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 23 per McHugh and Gummow JJ.

173 It is important to note that cl 5(1)(k) applies across the board to all offences which carry a penalty of imprisonment. Counsel for the Minister submitted that there was nothing untoward about treating a conviction for such an offence as a clear indication that the offender is unfit for office. Counsel proffered the example of s 44(ii) of the Constitution, which deals with disqualification of members of Parliament. In my view, the example does not assist the Minister’s case. Quite the contrary. Disqualification under s 44(ii) applies only where a person "has been convicted and is under sentence, or subject to be sentenced for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer". The dual requirement that there be a conviction, and that it be for an offence punishable by imprisonment for one year or longer, makes it plain that disqualification, in the case of members of Parliament, can only occur in a much narrower range of cases than is provided for in cl 5(1)(k). In any event, whatever s 44(ii) may say, constitutional provisions do not have to pass a "reasonable proportionality" test.

174 The fact is that cl 5(1)(k) is drafted in extraordinarily broad terms. It is difficult to conceive of a broader definition of "misbehaviour", at least in the context of criminal offences leading to termination or suspension. Perhaps the notion of "an offence", undefined, would be wider, but no one could seriously suggest that this would satisfy a reasonable proportionality test.

175 The Minister submitted that the validity of cl 5(5)(b) did not strictly arise on the facts of the present appeal. Mr Clark was not discharged without a conviction being recorded. That is true, but it is no answer to a challenge to the validity of cl 5(1)(k) based upon its having the potential to operate arbitrarily or capriciously. The fact is that cl 5(1)(k) can be coupled with cl 5(5)(b) to expand the reach of "misbehaviour" into the realms of truly trivial misconduct.

176 Nor can cl 5(1)(k) be saved by being contrasted with s 40(7) of the Act, which sets out the matters that will lead automatically to the termination of an ATSIC Commissioner’s appointment. These include conviction and imprisonment for at least one year, or, in the case of offences involving dishonesty, three months. However, that section plainly does not limit the concept of misbehaviour in s 40(1).

177 It may be accepted that the statutory scheme necessarily contemplated that misbehaviour under s 40(1) might be less reprehensible than the conduct covered by s 40(7). As the Minister correctly submitted, the offences in s 40(7) are of a serious nature. In such cases, the Minister has no discretion, but must terminate the appointment of the Commissioner. There is no "show cause" process, and there is no parliamentary supervision.

178 The fact that the discretionary power conferred by s 40(1) was left to deal with less serious matters, and that there are a range of additional processes and protections to prevent abuse or miscarriage of the discretionary power does not mean that the Minister is at large in defining misbehaviour under a determination. She is still obliged to ensure that any definition that she stipulates, though it may be broader than the ordinary meaning of "misbehaviour", as that term is understood in the context of the Act, meets the test of "reasonable proportionality".

179 The Minister contended that a finding of guilt in relation to an offence that carries any penalty of imprisonment must, ipso facto, be an appropriate basis upon which to consider suspension or termination. I am unable to accept that submission. She further contended that cl 5(1)(k), even when read with cl 5(5)(b), was "well within the power conferred by s.4A". She submitted that these clauses were "far removed from being so oppressive and capricious that no reasonable mind could justify [them]". I am not persuaded by that submission.

180 The concept of proportionality is central to any theory of punishment. It is a cardinal principle of sentencing that any penalty that is imposed must be proportionate to the gravity of the offence. For that reason, it is easier than it might otherwise have been to ask whether the possibility of suspension or termination by reason of guilt of a particular offence meets the test of "reasonable proportionality". To take an extreme example, one does not expect to see a statutory office-holder removed from office because of a parking offence.

181 One must be cautious about testing the validity of delegated legislation by considering extreme examples of its possible misuse. At the same time, it is legitimate to test whether a particular provision is reasonably proportionate by considering realistic examples of the use to which it might be put.

182 In my view, that is what the primary judge did when he considered the range of offences that carry potential terms of imprisonment throughout the Commonwealth, States and Territories. His Honour fairly described his analysis as a "brief survey" only. To his Honour’s list of offences there can be added many others. Some of these offences can be committed without any significant moral obloquy. A number would have no conceivable bearing upon the fitness of an ATSIC Commissioner to continue in office.

183 I set out below some examples of public order and related offences that carry imprisonment, beyond those noted by the primary judge. These offences do not of themselves seem to me to provide any rational basis for considering the suspension or termination of a person entrusted with the responsibilities of an ATSIC Commissioner. That is not to say that they should be regarded as trivial. At least in their aggravated forms, some of them may be regarded as serious. The extended list is as follows:

Summary Offences Act 1966 (Vic)

•	leaving a hole excavation or dangerous formation in or near a public place unguarded, or without having a warning light burning nearby, between sunset and sunrise – six months’ imprisonment: s 7(b);
•	posting any placard, bill, sticker or other document on, or writing or painting on, or otherwise defacing any road, bridge or footpath or any house, building, hoarding, wall, fence, gate, tree, tree-guard, post, pillar, hydrant, fire-alarm, petrol pump, or other structure whatsoever without consent -- three months’ imprisonment: s 10;
•	singing an obscene song or ballad, writing or drawing any indecent or obscene word, figure or representation, or using profane or indecent language in or near a public place or within the view or hearing of any person being or passing therein or thereon -- two months’ imprisonment: s 17;
•	suffering persons of notoriously bad character to frequent one’s refreshment house -- three months’ imprisonment for a second or subsequent offence: s 20; and
•	disturbing religious worship -- three months’ imprisonment: s 21.

Summary Offences Act 2005 (Qld)

• begging in a public place -- six months’ imprisonment: s 8;

• unlawfully leaving a gate open on farming land -- six months’ imprisonment: s 13(2); and

• possessing a graffiti instrument that is reasonably suspected of having been used, or about to be used, for graffiti-- 12 months’ imprisonment: s 17(1)(a).

Summary Offences Act 1953 (SA)

• using offensive language in a public place or police station -- three months’ imprisonment: s 7;

• interruption or disturbance of religious worship -- two years’ imprisonment: s 7A;

• habitually consorting with reputed thieves, known prostitutes or persons who have no lawful visible means of support -- six months’ imprisonment: s 13;

• failing to obey an order by a police officer to move on or disperse -- three months’ imprisonment: s 18;

• disorderly behaviour at a public meeting -- three months’ imprisonment: s 18A;

• posting a bill on property without lawful authority -- six months’ imprisonment: s 48; and

• throwing, setting fire to or exploding a firework or explosive material so as to injure, annoy or frighten, or be likely to injure, annoy or frighten, persons in any public place -- six months’ imprisonment: s 52.

Police Offences Act 1935 (Tas)

•	habitually consorting with reputed thieves or known prostitutes or with persons who have been convicted of having insufficient lawful means of support -- six months’ imprisonment: s 6;
•	cursing, swearing, singing an obscene song, using profane, indecent, obscene, offensive or blasphemous language in a public place, or within the hearing of any person in that place -- three months’ imprisonment: s 12;
•	jostling, insulting, or annoying any person in a public place – three months’ imprisonment: s 13(d);
•	setting off a firework in a public place -- three months’ imprisonment: s 13(f);
•	peeping or peering into the window or door of a dwelling-house, or lurking, loitering, or secreting on any land within the curtilage of a dwelling-house, without lawful excuse -- six months’ imprisonment: s 14A;
•	placing or causing to be placed in or upon any public place, dump, tip, or unfenced land, any refrigerator, ice chest, ice box, hot box, chest, trunk, wardrobe or cupboard-- six months’ imprisonment: s 19AA; and

• entering or remaining on the playing area of a sports ground without lawful excuse -- three months’ imprisonment: s 19A.

Summary Offences Act (NT)

•	disturbing religious worship -- six months’ imprisonment: s 46C;
•	unreasonably disrupting the privacy of another person -- six months’ imprisonment: s 47;
•	failing to obey a direction to cease to loiter in a public place -- six months’ imprisonment: s 47A;
•	begging -- three months’ imprisonment: s 56; and
•	possessing an article of disguise without lawful excuse -- three months’ imprisonment: s 56.

184 It is of some significance to note that New South Wales appears to have amended its public order legislation so as to remove the possibility of imprisonment for offences of this kind.

185 In truth, there are literally thousands of offences that carry possible terms of imprisonment throughout the Commonwealth, the States and the Territories. These are found in a host of statutes, ranging across almost all areas of human activity. They go beyond public order or nuisance offences. For example, under the Occupational Health and Safety Act 2004 (Vic) imprisonment is available as an option for breaches of ss 32, 76 and 125. Under s 24 of the Crimes Act 1958 (Vic), a person can be imprisoned for negligently doing or omitting to do an act that causes serious injury. Admittedly, the degree of negligence required will be greater than that necessary to establish civil liability, but the test is still wholly objective. Imprisonment is also available throughout all Australian States and Territories for various road traffic offences, some of them obviously of considerable gravity, but others falling well short of that description. At the Commonwealth level, putting to one side the various welfare and health insurance fraud offences, which all involve dishonesty, and tax, corporations and narcotics offences, which again may involve conduct of the utmost gravity, there are many other statutes that create offences for which imprisonment is an option. These include the Bankruptcy Act 1966 (Cth), the Civil Aviation Act 1988 (Cth), the Commonwealth Electoral Act 1918 (Cth), the Copyright Act 1968 (Cth), the Family Law Act 1975 (Cth), the Financial Transaction Reports Act (1988) (Cth), the Fisheries Management Act 1991 (Cth), the Migration Act 1958 (Cth), the Quarantine Act 1908 (Cth), the Radiocommunications Act 1992 (Cth), the Telecommunications (Interception) Act 1979 (Cth), the Trade Marks Act 1995 (Cth), and the Workplace Relations Act 1996 (Cth). The Commonwealth has its own "public order" offences as well, see the Public Order (Protection of Persons and Property) Act 1971 (Cth). It is important to note that even though imprisonment is available as a sentencing option under all of these statutes, some of the offences set out therein impose a reverse onus of proof on defendants.

186 Some offences that can still be prosecuted and are punishable by imprisonment would generally be regarded as archaic. On Norfolk Island, for example, the traditional offence of vagrancy still exists. A person can be imprisoned for being "idle and disorderly" or a "rogue and vagabond". The onus of proof rests upon the defendant to satisfy the court of his or her lawful means of support. In Victoria, although the offence of vagrancy has been abolished, offences such as "consorting" are still punishable by imprisonment under the Vagrancy Act 1966 (Vic). So too is being a "reputed cheat" who loiters "in or about any river, canal, navigable stream, dock or basin". Interestingly, s 19 of the Vagrancy Act bears a heading that indicates that offences of a serious nature are not to be dealt with under the Act.

187 As previously indicated, many offences that carry imprisonment do not have, as an essential element, a mental state that connotes moral obloquy. They are strict liability offences. In truth, the only "mens rea" that need be established in relation to these offences is negligence. Indeed, given that there is an evidential onus, at least, upon a defendant to establish an honest and reasonable mistake of fact in order to avoid conviction, not even negligence need be proved. The same is true of a number of offences where criminal liability is imposed vicariously.

188 It should not be thought that the principles of strict liability are rarely applied, and only involve regulatory offences. Until the High Court held otherwise in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, a number of drug offences under the Customs Act 1901 (Cth), including importation and possession of narcotics, were regarded as offences of strict liability. Needless to say, such offences carried the possibility of lengthy terms of imprisonment.

189 It should not be forgotten that, in England, it has even been held that an offence of "absolute liability" can result in a term of imprisonment: see R v Larsonneur (1933) 24 Cr App R 74.

190 When one adds to the many minor offences that still carry imprisonment in this country the fact that a finding of misbehaviour under the 2002 Determination must be made even where a case has been dismissed as trivial, and not warranting a conviction, the sheer scope of cl 5(1)(k) becomes apparent. Under the Crimes Act 1914 (Cth), s 19B provides that a court can discharge an offender against whom a charge is proved if it is of the opinion, inter alia, that the offence is of a trivial nature. Clause 5(1)(k) would nonetheless deem such an offence to be misbehaviour for the purpose of considering the suspension or termination of an ATSIC Commissioner. In other words, under cl 5(1)(k), even the most minor example of an offence that has been found by a court to be "of a trivial nature", and that was committed without any moral turpitude whatever, will amount to "misbehaviour".

191 It is not difficult to see why, in these circumstances, the primary judge concluded that cl 5(1)(k) did not meet the standards of reasonable proportionality. His Honour correctly asked himself whether, viewed through the prism of ATSIC’s role under the Act, and its responsibilities towards indigenous people, suspension or termination could possibly be justified in such circumstances. He noted that ATSIC, while it existed, was unique among Australian statutory bodies. It was part of the executive arm of government but, at the same time, had a vital function in representing the views of indigenous people. It played an important role in policy formulation. It also took responsibility for the management of various government programs. It was, to a considerable degree, a body intended to be autonomous, and independent of government, while still being an arm of government. On that basis, Parliament could not have intended that Commissioners be removed for conduct that most sensible people would regard as relatively harmless. Yet, the 2002 Determination brought such conduct squarely into the ambit of misbehaviour. Accordingly, it empowered the Minister to consider suspension or termination.

192 There is no rational basis for embarking upon the process of considering suspension or termination in relation to conduct that cannot, on any sensible view, ultimately justify suspension or termination. The vice in cl 5(1)(k) lies in its failure to filter out, as a possible basis for the Minister’s consideration, conduct that could not conceivably warrant suspension, still less termination. In that sense, cl 5(1)(k) is premised upon reasoning that is seriously flawed, almost to the same extent as reasoning containing a logical fallacy.

193 It is one thing to permit the Minister, by delegated legislation, to develop an expanded meaning of "misbehaviour". It is altogether another to permit the Minister to define "misbehaviour", in the context of considering suspension or termination, in a manner that is unreasonable and disproportionate, as well as arbitrary and capricious.

194 Had cl 5(1)(k) been more tightly drafted, it might have withstood his Honour’s scrutiny, at least as regards unreasonableness. Many provisions allow for removal of office-holders upon conviction of a criminal offence. Normally, the offence must involve some aggravating feature, such as violence or dishonesty. Where no such aggravating feature, or characteristic, is stipulated, it is usually the case that the offence must carry a significant term of imprisonment. Typically, this will be twelve months or more. Analogous provisions can be found in the Migration Act 1958 (Cth), and in the Extradition Act 1988 (Cth). The primary judge could find no example of any provision that had the potential reach of cl 5(1)(k) in any other Act, or regulation. Interestingly, the Minister was unable to proffer any such example either. The absence of any provision of this type in other legislation is itself suggestive of a lack of proportionality.

195 That is not to say that I agree with everything that his Honour said regarding reasonable proportionality. His discussion of the findings of the Royal Commission into Aboriginal Deaths in Custody, and his analysis of the overrepresentation of indigenous people in the criminal justice system, at [91]-[99], was, with respect, of no direct relevance. That discussion was unnecessary to the conclusion that cl 5(1)(k) lacked reasonable proportionality. In that regard, I agree with the Minister’s contention that such factors, no matter how powerful or clearly established they might be, do not bear upon the construction of s 4A(1), or cl 5(1)(k).

THE PRIMARY JUDGE’S FINDINGS IN RELATION TO RACIAL DISCRIMINATION

196 There is another aspect of his Honour’s reasoning in relation to cl 5(1)(k) with which, with respect, I am unable to agree. As previously indicated, he held that s 4A(1) and cl 5(1)(k) should be read down in light of s 10 of the RDA. In my view, there was no need to read cl 5(1)(k) down in order to avoid contravening that section. Clause 5(1)(k), put simply, did not contravene the RDA at all.

197 It must be noted that s 10 does not contain any proscription, as such, of racial discrimination. Section 9(1) contains the central proscription of "direct" discrimination. That section makes unlawful a wide range of acts, including those involving a distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin that has a designated purpose or effect. Section 9(2) further broadens the coverage of the RDA. Section 10 merely confers upon any person of a particular race, colour, or national or ethnic origin who is denied by any statute any right enjoyed by others of a different race, colour, national or ethnic origin, an entitlement to enjoy that right to the same extent as those others. In one sense, s 10 cannot be contravened as such.

198 The 2002 Determination applied to a range of officers and persons. It applied to a number of positions where the occupant was not required to be an Aboriginal person, or a Torres Strait Islander. These included the Chief Executive Officer of ATSIC (s 53), the Director of Evaluation and Audit (s 77G), and the Administrator of a Regional Council (s 124F). In addition, not all Directors of Indigenous Business Australia were required to be indigenous persons (s 157(3)). As the Minister properly submitted, it is no answer to the structure and text of the Act to engage in speculation that the holders of such offices were likely to be indigenous, as his Honour did at [90].

199 Had the 2002 Determination provided a different test for suspension or termination of indigenous persons from that applicable to non-indigenous persons, it would obviously trigger the operation of s 10, and result in an adjustment of rights, as a matter of construction, as contemplated by the section (subject to one possible qualification, suggested on behalf of the Minister, to which I shall turn shortly). However, that is not the case here. There is no inconsistency of treatment based upon race within either the Act, or the 2002 Determination.

200 The primary judge went further and concluded at [109]-[110] that it was appropriate to compare the position under s 40 of the Act with the position of other, different office-holders. I regard that approach as misconceived. The comparator provisions cited by his Honour were applicable to both indigenous, and non-indigenous persons. They were not examples of a right enjoyed by persons of another race, or a liability imposed on persons of another race. Indigenous persons enjoyed the same rights, and suffered from the same liabilities as non-indigenous persons.

201 More significantly, I consider that the statutory offices to which his Honour had regard were in no way comparable to ATSIC Commissioners. The provisions for suspension and removal of statutory office-holders will inevitably differ as between those officers. The fact that a lower threshold for removal was adopted in relation to ATSIC Commissioners than was considered appropriate for other office-holders says nothing, of itself, about discrimination. Plainly, some officers are required to meet higher standards of behaviour than others, and there is nothing intrinsically wrong with demanding high standards of ATSIC Commissioners.

202 The Minister pointed to other positions with less security than that of an ATSIC Commissioner. It is true that Ministers are terminable at will (s 64 of the Constitution). So too are Secretaries of Departments: Barratt v Howard [2000] FCA 190; (2000) 96 FCR 428. However, there is no relevant comparison between these positions, and that of ATSIC Commissioners. The fact that public servants can be terminated for conduct that falls short of the commission of criminal offences is, again, beside the point. Non-criminal conduct also falls within the 2002 Determination. It is the fact that a conviction (which actually includes a non-conviction disposition) for any offence that carries any term of imprisonment automatically amounts to "misbehaviour" that distinguishes cl 5(1)(k) from these other examples.

203 In any event, as the Minister correctly submitted, s 10 of the RDA does not, in terms, prevent the making of any particular law. Rather, it affects the operation of laws that are validly made: see Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 ("Gerhardy"); Mabo v Queensland (No 1) [1988] HCA 69; (1988) 166 CLR 186; Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 434-52; and Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at 96-109. However, it requires a comparator to have this effect, since it gives the person discriminated against that person’s rights by reference to that comparator. In the present case there was no such comparator.

204 The primary judge held, at [130], that cl 5(1)(k) should be read down to include only offences "of sufficient seriousness and of such a character as to render a person convicted or found guilty of one of them impaired in continuing to hold the relevant office". To the extent that this conclusion flowed from a finding that the 2002 Determination contravened the RDA, it cannot be supported. Whether or not it can find independent support is a matter to which I shall next turn.

205 The one qualification, to which I referred at [199], to what is set out above was that suggested on behalf of the Minister. That was that the structure of the ATSIC Act, insofar as it prevented persons other than Aboriginal persons or Torres Strait Islanders from being appointed as Commissioners, was a "special measure" under s 8 of the RDA and Art 1(4) of the CERD. Section 8(1) provides as follows:

This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which sub-section 10(1) applies by virtue of sub-section 10(3).

206 Article 1(4) of the CERD provides that "special measures" taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups, or individuals shall not be deemed racial discrimination provided that such measures do not lead to the maintenance of separate rights for different racial groups, and are not continued after the objectives for which they were taken have been achieved.

207 These provisions were considered in some detail in Gerhardy. In that case, a South Australian statute that vested the title to a large tract of land in the north-west of South Australia, and gave "All Pitjantjatjaras" unrestricted rights of access to the lands, and prohibited any non-Pitjantjatjara person from entering the lands without permission, was a "special measure", and therefore a valid law of the South Australian Parliament. Had it not been a "special measure", the statute would have been inconsistent with s 9 of the RDA.

208 Section 31(1) of the ATSIC Act makes it a qualification for appointment as an ATSIC Commissioner that a person be an Aboriginal or Torres Strait Islander. Whether that section is a "special measure" is of no consequence. The question is whether the 2002 Determination is a "special measure", and therefore immune from attack as being discriminatory. On no view can cl 5(1)(k) be described as a measure enacted "for the sole purpose of securing adequate advancement of certain racial or ethnic groups". Nor can it be characterised as a protective measure. It is not a measure designed to achieve "substantive equality": Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250; (2004) 81 ALD 1 per Kenny J.

209 The Minister submitted that once it is conceded that s 31(1) is a "special measure", any limits inherent in or attached to the office designated by that section are part of the special measure, and cannot be separately attacked as racially discriminatory. According to that submission the terms on which a Commissioner can be suspended from office, including the power to specify the meaning of misbehaviour, are part of the terms of that office. In my view, this submission cannot be accepted. It involves a strained, if not perverse, reading of s 8 of the RDA, and would thwart rather than promote the intention of the legislature. If the submission were correct, any provision of an ancillary nature that inflicted disadvantage upon the group protected under a "special measure" would itself be immune from the operation of the RDA simply by reason of it being attached to that special measure.

210 In any event, the point is moot as I consider that s 10 has no application for the other reasons already set out.

READING DOWN

211 Section 46(1)(b) of the Acts Interpretation Act 1901 (Cth), as it stood at the time of his Honour’s judgment, relevantly provided that any instrument that exceeded the power conferred upon an authority to make that instrument should nevertheless be a valid instrument to the extent to which it was not in excess of that power. A provision to the same effect is now embodied in s 46(2) of the Act. In Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311 at 323, s 46(1)(b) was described as a "reading down provision", corresponding to the provision, as regards statutes, to be found in s 15A. See also Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 347-8.

212 The primary judge concluded that, in the present case, severance of cll 5(1)(k) and 5(5)(b) from the rest of the 2002 Determination would be possible. However, it was also possible to read those clauses down in the manner described above at [204]. As has been seen, his Honour elected to adopt the latter course. By his notice of contention, Mr Clark submitted that his Honour ought to have held that cll 5(1)(k) and 5(5)(b) were invalid, and could not be read down. Those clauses ought therefore simply to have been severed. The Minister simply noted, in response, that the issue of reading down would not arise unless those clauses were held to exceed the power conferred by s 4A. That is in fact the conclusion I have reached. It follows that the issue of reading down does arise.

213 It is sufficient for present purposes to say that I can see no error in his Honour’s conclusion that the clauses in question should simply be read down, and not severed. Nor can I see any error in the way in which his Honour carried out that process of reading down. It follows that the notice of contention, insofar as it challenges the decision to read down rather than sever, will be dismissed.

FAILURE TO IDENTIFY "SPECIFIED BEHAVIOUR"?

214 The other issue raised in the notice of contention is that s 4A(1) permits the Minister to make a determination that "specified behaviour is taken to be misbehaviour". It is said that cl 5(1)(k) does not specify behaviour "of a person but rather that of a court", and is therefore beyond power. I am unable to accept that submission. Clause 5(1) of the 2002 Determination provides in part, with emphasis added:

For subsection 4A(1) of the Act, the behaviour of a person in each of the following circumstances is taken to be misbehaviour:
...

(k) the person is convicted of an offence for which there is a penalty of imprisonment.

215 The behaviour specified is the behaviour of a person in the circumstances under which that person is convicted. Clause 5(1)(k), upon its proper construction, does not make the act of convicting a person "misbehaviour" per se, but rather identifies as "misbehaviour" the "behaviour" of the person in the circumstances in which that person has been convicted. The conviction establishes the behaviour that comprises the relevant offence, which thereby constitutes "misbehaviour".

THE CONCEPT OF "MISBEHAVIOUR" GENERALLY

216 This leaves me with the final matter for determination. As previously indicated, the Minister based her finding that Mr Clark had been guilty of misbehaviour, and her decision that his conduct warranted suspension, upon two separate grounds. The first involved cl 5(1)(k), and the definition of "misbehaviour" embodied in that provision. My conclusion that the primary judge was correct in holding that the clause would be invalid unless read down, means that the Minister herself had to read the clause down in order to apply it correctly. There is no suggestion in her reasons that she did so. Nor was it contended that this was the case. That is sufficient, of itself, to establish that she misdirected herself in law. In the context of this case, an error of that kind plainly constitutes jurisdictional error.

217 However, the fact that the decision to suspend Mr Clark was based in part upon a wholly independent ground means that any error, on the Minister’s part, in relation to the first ground is not necessarily determinative. The second ground upon which she acted involved a finding that Mr Clark’s conduct fell within the "general concept of misbehaviour" in the context of the Act. The primary judge considered the situation in relation to this ground to be "less clear". He noted that the Minister’s reasons contained no discussion of the relationship between the concept of "misbehaviour" and the duties and requirements of an ATSIC Commissioner in the light of the "protective function" of the power given by s 40 of the Act. Nowhere in the Minister’s reasons did she express any finding of fact regarding that matter. Nor did she express any finding regarding any possible impact of the appellant’s conviction upon the maintenance of ATSIC’s integrity.

218 His Honour observed that from the structure of the Minister’s reasons it seemed clear that she did not consider that she was required to have regard to issues of that kind before deciding whether to make a finding of misbehaviour. Rather, she appeared to assume that it was only necessary to consider issues such as the object of s 40, and the impact of Mr Clark’s conviction upon ATSIC once she had made a finding of misbehaviour, and then only in relation to whether that misbehaviour warranted suspension. Even then, the Minister made no positive findings about matters such as his capacity for office, or what significance, if any, should be attributed to the Board of ATSIC’s unanimous support for his continuation in office as Chairperson. His Honour found that, in effect, all that the Minister had done was to summarise the submissions made on behalf of Mr Clark, and reject them.

219 His Honour concluded that there was nothing to indicate that the Minister was aware that she had to consider whether a finding of misbehaviour, in this general sense, could be made on any basis other than that she was entitled to disapprove of Mr Clark’s conduct. He was therefore of the view that, in deciding whether to suspend Mr Clark in reliance upon this "general concept", the Minister’s reasons demonstrated that she had failed to take into account a relevant consideration, namely that the concept of misbehaviour, in that general sense, did not necessarily extend to Mr Clark’s conduct. In substance, his Honour held that s 40(1) required the Minister to take into account as misbehaviour only such behaviour as bore upon Mr Clark’s capacity to hold the office of Commissioner. By failing to take that limited definition of misbehaviour into account, she had failed to take into account a relevant consideration.

220 The Minister submitted that the primary judge fell into appealable error in so holding. She submitted that s 40 required her to determine two questions only. Was there misbehaviour? And if so, did the misbehaviour warrant suspension? She submitted that it was clear that she had addressed each of these questions.

221 Mr Clark, on the other hand, submitted that the primary judge had correctly held that the Minister had failed to take into account the limited definition of "misbehaviour" that was properly applicable. He submitted that this error on the part of the Minister was fundamental, and went to jurisdiction.

222 Given that his Honour found jurisdictional error based upon a failure to take into account a relevant consideration, it is necessary to say something further about that ground. It is clear that a relevant consideration, in this sense, is one that a decision-maker is bound to take into account when exercising his or her powers: Peko-Wallsend at 39-40. Whether or not a particular consideration is relevant is determined by the structure, text and scope of the Act conferring discretion. It is usually expressed at a level of abstraction higher than merely a particular factor, a particular fact, or particular evidence: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 347-8 per McHugh, Gummow and Hayne JJ.

223 The Minister acknowledged that she had been required to consider whether Mr Clark’s conduct amounted to misbehaviour. However, she submitted that beyond that question, there were no considerations that she was bound to take into account. Rather, there were merely a series of factors, facts, and pieces of evidence that she was entitled to consider if she wished to do so.

224 Alternatively, the Minister submitted that, on a fair reading, her statement of reasons showed that she had taken into account all of the submissions made on behalf of Mr Clark. These included submissions relating to the nature of his office, the findings of Judge White as to the gravity of his conduct, the objective seriousness of his offence (which Mr Clark submitted to be low), and his contention that indigenous people would suffer if ATSIC were denied his leadership.

225 The Minister submitted that her reasons should be given a beneficial construction. They should not be scrutinised in an overzealous manner "with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2. She contended that her statement of reasons focussed upon the issues in dispute, namely the matters put to her by Mr Clark. She submitted that she was not obliged to provide a detailed definition of misbehaviour in those reasons. Nor was she obliged to set out, in any detailed way, her understanding of the duties and functions that an ATSIC Commissioner performed. She was under no obligation to discuss the gravity of his offence. To the extent that her reasons did not set out discrete findings, and failed to disclose any reasoning on these issues, they might be the subject of legitimate criticism. However, that could not, of itself, demonstrate that the decision to suspend Mr Clark was invalid: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at 223, 226 and 234-7 ("Ex parte Palme").

226 The Minister’s statement of reasons is set out in full at [61] of these reasons for judgment. It is clear from that statement that the Minister did consider the two matters that she identified as being the only questions that she was required to address, namely whether there was misbehaviour, and if so, whether it warranted suspension. It is also clear that she concluded that Mr Clark’s conduct was sufficiently serious to warrant suspension.

227 However, in my view the primary judge was correct in holding that the Minister was required, pursuant to s 40(1), to consider whether Mr Clark’s conduct bore upon his capacity to continue to hold office as an ATSIC Commissioner. Conceptually, that question is separate and distinct from the question whether his conduct was "serious enough" to warrant suspension. The latter simply glosses over the former.

228 The distinction between the two questions can be illustrated by example. In Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, a barrister who was convicted of manslaughter as a result of a collision between a motor vehicle that he was driving and a motorcycle, and sentenced to a term of imprisonment, appealed against an order of the Supreme Court of New South Wales removing his name from the roll of counsel. The High Court, by majority, allowed the appeal, holding that he should merely be suspended from practice during his period of imprisonment.

229 Kitto J observed that it was necessary to focus upon the particular position and functions of a barrister in what was "no ordinary profession or occupation". His Honour spoke of the privileges associated with that office, and went on to say, at 298:

Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task.

230 This passage was recently considered, and cited with approval, in the joint judgment of Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ in A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 ("A Solicitor") at 267-8.

231 Of course, Mr Clark’s position is far removed from that of the appellant in A Solicitor. The issue in that case was whether the misbehaviour in question, a series of sexual offences against children, amounted to "professional misconduct". The High Court held that it did not. What is instructive about the decision, however, is the emphasis the Court gave, when answering that question, to the purpose for which the inquiry was being conducted.

232 It is important to note that there is no indication in the Minister’s statement of reasons that she gave any consideration to the purpose for which she was conducting her inquiry. In other words, she did not address the central question for determination.

233 That does not, of itself, demonstrate that she failed to have regard to a relevant consideration. It is, however, a starting point along a path to that conclusion.

234 The High Court has recently had occasion to consider the consequences of a failure on the part of the Minister to address a central issue in the Minister’s reasons for decision. In Ex parte Palme, the question was whether the Minister had discharged the obligation that rested upon him by s 501G(1) of the Migration Act 1958 (Cth) to give reasons for his decision to cancel the prosecutor’s visa. Section 501(2) of that Act empowered the Minister to cancel a visa if he reasonably suspected that the holder did not pass the "character test", and the holder did not satisfy the Minister that he or she passed that test. Section 501(6) provided that a visa holder could not pass the character test if he or she had a "substantial criminal record". This was defined by s 501(7) to include a sentence to a term of imprisonment of twelve months or more.

235 The prosecutor had been born in Germany, but had lived in Australia since 1971. In 1992, he was convicted of murder and sentenced to a long term of imprisonment. Before that sentence expired, the Minister cancelled his permanent resident’s visa. In deciding to do so, the Minister had before him a Departmental submission that set out the relevant facts and policy considerations. The last page provided him with four options. The Minster recorded his decision by crossing out three of them. The submission was then provided to the visa holder in purported compliance to give reasons.

236 It was held that the provision to the prosecutor of the Departmental submission had not discharged the statutory obligation to give the prosecutor a written statement setting out the reasons for the decision.

237 In their joint judgment, Gleeson CJ, Gummow and Heydon JJ noted that it had been decided in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 120 that the "inadequacy" of the material on which the decision-maker acted may support the inference that he or she had applied the wrong test, or was not "in reality" satisfied of the requisite matters. They also noted that, in Public Service Board (NSW) v Osmond [1986] HCA 7; (1986) 159 CLR 656 at 663-4, Gibbs CJ had stated, with reference to Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997 at 1053, that "if the decision-maker does not give any reason for his decision, the court may be able to infer that he had no good reason". Their Honours considered that none of these cases were directly in point.

238 However, what was significant for present purposes is the observation in Ex parte Palme at 224 that the statutory duty imposed upon the Minister made it:

at least necessary for him to express the essential ground or grounds for his conclusion that the prosecutor had not satisfied him that he passed the character test and that the prosecutor’s visa should be cancelled. That was not done. (footnote omitted)

239 The same can be said of the Minister’s statement of reasons in the present case. It was at least necessary for her to express the essential ground for her conclusion that Mr Clark’s conviction rendered him guilty of misbehaviour, and warranted his suspension. In order to do so, she had to consider how his conduct impacted upon his capacity to perform his duties as an ATSIC Commissioner. Her failure to do so was striking.

240 It is important to note that the majority in Ex parte Palme held that the Minister’s failure to discharge the obligation imposed by s 501G(1) to provide reasons did not vitiate his decision to cancel the particular visa for jurisdictional error. That was because the duty to provide reasons, pursuant to the statute, was susceptible to enforcement by an order for mandamus.

241 Relying upon that reasoning, counsel for the Minister in the present case submitted that if her statement of reasons was deficient, s 13(7) of the ADJR Act conferred power upon the Court, on application, to order the provision of an additional statement of reasons, containing further and better particulars in relation to specified matters. Counsel also submitted that in Ex parte Palme, there was at least one additional basis for impugning the Minister’s reasons in that case, namely that they were "conclusionary". Curiously, at the same time, the Minister relied upon the fact that her reasons were "conclusionary" in answer to a slightly different point made by Mr Clark. See [90] of these reasons for judgment.

242 In my view, Ex parte Palme does not establish that the failure of a decision-maker to refer to a relevant matter in a statement of reasons cannot be used to ground an inference that the matter was not taken into account. Rather, that case focuses attention upon the need to analyse carefully whether or not that inference ought properly to be drawn.

243 It may readily be accepted that a failure to give reasons does not of itself invalidate a decision. Nor does it amount, of itself, to jurisdictional error: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 139 FCR 292, and Le v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 51; (2005) 215 ALR 521 ("Le") at [220] per Jacobson and Bennett JJ.

244 However, there may be circumstances where a failure to refer to a critical matter in a statement of reasons will give rise to an inference that the matter was not taken into account. In the present case, the Minister was asked to provide reasons for her decision. She was under a statutory duty to do so. She was provided with detailed submissions that focussed upon the issue of whether Mr Clark’s conviction rendered him unfit to continue in office as an ATSIC Commissioner. She was asked to have regard to the nature of that office, and also to various other matters. Apart from stating that she had read the submissions, and briefly referring to some of them, she said nothing of substance about them. She did not say why Mr Clark should no longer continue to be an ATSIC Commissioner, apart from referring to his conviction. That, in my view, fell well short of meeting the requirements stipulated in Ex parte Palme, and, in the particular circumstances of this case, justified the inference that the primary judge drew that she had not had regard to a relevant consideration.

245 Although his Honour did not refer to them, the authorities on this point are reasonably clear. The question is whether, in the particular circumstances, it should be inferred from the Minister’s failure to refer, in her statement of reasons, to an essential matter, that she failed to have regard to a consideration that she was bound to take into account. See generally: Wan v Minister for Immigration and Multicultural [2001] FCA 568; (2001) 107 FCR 133; Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608; Nguyen v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 757; Taurino v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 119; Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 at [17] per Tamberlin, Kiefel and Emmett JJ; and Le at [33] per Lee J. See also Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507, and Mees v Kemp (as Minister for the Environment and Heritage) [2004] FCA 366 (upheld on appeal – see Mees v Kemp in his capacity as Minister for the Environment and Heritage [2005] FCAFC 5).

246 In my view, the issue that the Minister failed to address, in her statement of reasons, should have been central to any decision to suspend. The primary judge inferred that this omission meant that she had failed to consider that issue. That inference was plainly open, and involved a finding of fact. This Court, sitting on appeal from his Honour’s judgment, will not interfere with a finding of that nature unless persuaded that it was erroneous. I am not so persuaded.

247 These reasons for judgment should not be misunderstood. I do not intend to suggest that Mr Clark’s conduct, in obstructing the police at the Criterion Hotel, should not be seen in a serious light. In ordinary parlance, it could readily be called misbehaviour. However, that is not to the point. The Minister was required to consider that conduct against the background of a particular statutory scheme. More specifically, she was required to consider whether it was misbehaviour of a kind that triggered the possible suspension, and termination, of an ATSIC Commissioner. In performing that task, she was obliged to comply with the statutory requirements that surrounded such suspension or termination. For the reasons set out in this judgment, including the invalidity cl 5(1)(k), the process simply miscarried. It is for that reason that the Minister’s appeal in this case must fail.

248 Although the Minister has succeeded on some of the points argued in this appeal, the appeal itself must be dismissed. The Minister should pay Mr Clark’s costs.

I certify that the preceding two hundred and twenty-three (223) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated: 6 September 2005

Counsel for the Applicant:	Mr R Orr QC with Mr C Horan
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Ms DS Mortimer SC with Ms RM Doyle
Solicitors for the Respondent:	Coadys
Date of Hearing:	15 and 16 February 2005
Date of Judgment:	6 September 2005