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Editors --- "Vanstone v Clark [2005] FCAFC 189 - Case Summary" [2005] AUIndigLawRpr 64; (2005) 9(4) Australian Indigenous Law Reporter 13

VANSTONE v CLARK

Federal Court of Australia (Black CJ and Weinberg J)

6 September 2005

[2005] FCAFC 189

Administrative law — validity of delegated legislation — whether failure to take into account a relevant consideration — whether jurisdictional error — use of term ‘has a meaning affected by’ — meaning of ‘misbehaviour’ — whether Racial Discrimination Act 1975 (Cth) contravened

Facts:

Mr Clark, a Commissioner of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’), was convicted on a charge of obstructing police. The maximum penalty for the offence included imprisonment. A fine was imposed.

Section 40 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (‘the Act’) empowered the relevant Minister to suspend a Commissioner for misbehaviour. Under s 4A of the Act, the Minister was able to make determinations about what constitutes misbehaviour. Clause 5(1)(k) of the Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 (‘the Determination’) stated that conviction of an offence for which there is a penalty of imprisonment is a circumstance taken to be misbehaviour.

On 23 December 2003, the Minister advised Mr Clark in writing that she was considering initiating a suspension process against him and asked him to show cause why he should not be suspended. On 22 January 2004, the Minister advised Mr Clark that she was suspending him from office as a Commissioner of ATSIC. The Minister provided Mr Clark with a Statement of Reasons for her decision on 19 February 2004.

At first instance, Gray J held that the decision to suspend Mr Clark was tainted by jurisdictional error and ought to be set aside. The Minister appealed the decision.

Held, dismissing the appeal:

1. Per Black CJ and Weinberg J: Although ATSIC was effectively abolished by the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth), the Court should not exercise its discretionary power to stay the appeal permanently: [6]–[8], [31]–[38]. In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257; 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; Mayne Nickless Ltd v Transport Workers Union of Australia [1998] FCA 984; La Roche v Cormack [1991] FCA 627; (1991) 33 FCR 414; Ruhani v Director of Police [No2] [2005] HCA 43 referred to.

2. Per Black CJ and Weinberg J: There is no inconsistency of treatment based upon race within either the Act or the Determination, and no need to read clause 5(1)(k) of the Determination down in order to avoid contravening s 10 of the Racial Discrimination Act 1975 (Cth): [19], [196]–[210]. Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 considered. Mabo v Queensland (No 1) (1988) 166 CLR 186; Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373; Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1; Barrett v Howard [2000] FCA 190; (2000) 96 FCR 428; Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250; (2004) 81 ALD 1 referred to.

3. Per Black CJ and Weinberg J: The primary judge was correct in holding that s 40(1) of the Act 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. It was at least necessary for the Minister to express in her statement of reasons the essential ground for her conclusion that Mr Clark’s conviction rendered him guilty of misbehaviour, and warranted his suspension. Her failure to do so justified an inference that she had not had regard to a relevant consideration: [20]–[24], [216]–[246]. Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 considered. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 139 FCR 292; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 51; (2005) 215 ALR 521; Wan v Minister for Immigration and Multicultural [2001] FCA 568; (2001) 107 FCR 133; Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5; (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; Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500, Mees v Kemp [2004] FCA 366, Mees v Kemp [2005] FCAFC 5 referred to. A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2003) 216 CLR 253 distinguished.

4. Per Black CJ: According to s 4A(1) of the Act the Minister’s determination must denote ‘specified behaviour’ in order to be a valid determination. Clause 5(1)(k) does not refer to the conduct of a person, but to the result or consequence of such conduct. The clause thus falls outside the scope of the ordinary meaning of s 4A(1) of the Act: [9]–[15]. Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd [1913] HCA 71; (1913) 16 CLR 245; Jolly v Yorketown District Council [1968] HCA 55; (1968) 119 CLR 347 considered. Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355; Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 referred to.

5. Per Weinberg J: The behaviour specified in clause 5(1)(k) of the Determination is the behaviour of a person in the circumstances under which that person is convicted. The clause is not beyond power on this ground: [214]–[215].

6. Per Weinberg J: Section 4 of the Act provides that the term ‘misbehaviour’ has a meaning that is ‘affected by section 4A’. Section 4A of the Act allows the Minister to define ‘misbehaviour’ for the purpose of considering suspension or termination. This power authorises her to extend the meaning of ‘misbehaviour’ beyond the meaning that it would normally be accorded in the context of the Act. The primary judge thus erred in his construction of s 4A: [115]–[139]. Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245; Morton v The Union Steamship Company of New Zealand Limited [1951] HCA 42; (1951) 83 CLR 402 considered. Lees v Secretary of State for Social Services [1985] AC 930; Hamzy v Tricon International Restaurants [2001] FCA 1589; (2001) 115 FCR 78; Macris v Lucas [1971] SASR 329; R v Commissioner of Patents; Ex parte Martin [1953] HCA 67; (1953) 89 CLR 381; Ira, L & AC Berk Ltd v The Commonwealth of Australia [1930] NSWStRp 4; (1930) 30 SR (NSW) 119; Powell v May [1946] KB 330; Ex parte Kauter [1904] NSWStRp 35; (1904) 4 SR (NSW) 209; Re Bluston [1966] 3 All ER 220; Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641; Maroney v The Queen [2003] HCA 63; (2003) 216 CLR 31 referred to.

7. Per Weinberg J: Clause 5(1)(k) of the Determination is drafted in extraordinarily broad terms, and can be coupled with cl 5(5)(b) to expand the reach of ‘misbehaviour’ into the realms of truly trivial conduct. The primary judge correctly held that cl 5(1)(k) did not meet the requirements of reasonable proportionality: [140]–[195]. Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1; Mixnam’s Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214; Chertsey Urban District Council v Mixnam’s Properties Ltd [1965] AC 735; Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381; Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142; South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161; Minister of State for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565;; He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523; Brunswick Corporation v Stewart [1941] HCA 7; (1941) 65 CLR 88; Bruce v Cole (1998) 45 NSWLR 163 considered. De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502; Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300; La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201; Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567;; Polyukhovich v Commonwealth of Australia [1991] HCA 32; (1991) 172 CLR 501; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; 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; Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGERA 288; House v Forestry Tasmania [1995] TASSC 95; (1995) 5 Tas R 169; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; R v Larsonneur (1933) 24 Cr App R 74 referred to.

8. Per Black CJ: As cl 5(1)(k) of the Determination is wholly beyond power, there is no occasion for reading it down: [16]–[17]. Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87; The King v Poole; Ex parte Henry [No 2] [1939] HCA 19; (1939) 61 CLR 634; Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 considered.

9. Per Weinberg J: There is no error in the trial judge’s conclusion that clauses 5(1)(k) and 5(5)(b) of the Determination should be read down, and not severed, 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: [204], [211]–[213]. Harrington v Lowe (1996) 190 CLR 311; Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 referred to.

Case Extract:

Black CJ

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.

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 [Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)]. 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.

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. 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] FCA 1726; (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) 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) 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).

Weinberg J

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.

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.

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.

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?

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.

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.

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.

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) 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.

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.

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.

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.

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.

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.

203. … [A]s 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) 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.

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’.

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.

227. … [I]n 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.

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.

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 [(2003) [2003] HCA 56; 216 CLR 212], 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.

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.…