The meaning of misbehaviour
73 There can be no doubt that the word 'misbehaviour' is a word of imprecise meaning. The Macquarie Dictionary does not provide a separate definition from 'misbehave', which it defines as 'to behave badly'. The Oxford Dictionary defines 'misbehaviour' as 'bad behaviour, improper conduct'. These definitions say little, if anything, about the meaning to be given to the word in a particular situation. In Re Kuzma; Ex parte The Public Trustee as Executor and Trustee of the Estate of Stanislav Kuzma [2002] WASC 303, McKechnie J said that the word 'misbehaves' in a condition subsequent to a gift in a will was 'impossibly wide and can bear no realistic meaning'. His Honour held that the expression 'misbehaves' in that context was uncertain and, as a consequence, the condition was void.
74 There is surprisingly little judicial exposition of the meaning of the word 'misbehaviour' when it is used in a statutory context. For instance, the expression 'gross misbehaviour', now found in s 141(1)(c)(iii) of Sch 1B to the Workplace Relations Act 1996 (Cth), has appeared in similar provisions restricting the content of rules of organisations registered under that Act for some three decades. The phrase has been mentioned in numerous judgments, but does not appear to have been the subject of explanation as to what 'misbehaviour' might mean.
75 Some earlier English cases provide some instances of findings of 'misbehaviour' under particular statutes. In Re Ward (1861) 30 LJ Ch 775 involved the removal from office of a coroner on the ground of 'misbehaviour in his office'. It appeared that the coroner, having summoned a jury for 3.00 pm, for the purpose of holding an inquest into the death of a particular person, did not arrive until after 5.00 pm. When he arrived he was intoxicated. He dismissed the jury without having the jurors sworn and announced that it was unnecessary to hold an inquest. He made some remarks critical of a recently introduced regime for the remuneration of coroners. He was subsequently convicted and fined in respect of his drunkenness on the occasion. Not surprisingly, Lord Campbell LC found the coroner guilty of misbehaviour in his office and removed him from office. The misbehaviour concerned seems to have involved both the intoxication and the failure to fulfil the duty of having the jurors sworn and conducting the inquest, which the Lord Chancellor found to have been the result of improper motive, in that the coroner believed he was not receiving sufficient remuneration for the performance of that duty.
76 There are two judgments of Divisional Courts concerning the meaning of 'misbehaviour' in the Poor Relief Act 1815 (UK). In Mile End Guardians v Sims [1905] 2 KB 200, it was held that refusal to obey a lawful direction to attend at a particular workhouse for the purpose of working did not constitute misbehaviour. This conclusion was in the context of a specific provision in the legislation, dealing with refusal to perform work. Lord Alverstone CJ, who delivered the judgment of the court, gave as an example of misbehaviour 'being guilty of outrageous or improper conduct while in the workhouse, which would make the man who committed them disorderly'. These words were recalled a few years later in Holland v Peacock [1912] 1 KB 154. In that case, two inmates of a workhouse, who had been directed to perform separate cleaning tasks, were found having sexual intercourse on the floor of a bathroom. The Divisional Court, again presided over by Lord Alverstone CJ, had no hesitation in holding that this conduct had the necessary outrageous or improper character, so as to make it misbehaviour. Fairly clearly, it was disorderly conduct in the context of the need to maintain discipline in the workhouse.
77 More recently, in Rice v University of Queensland (unreported, Industrial Relations Court of Australia, Madgwick J, 13 March 1998), Madgwick J dealt with an industrial award covering academics. In making the point that a single instance of conduct could amount to misbehaviour, his Honour gave as what he called 'an extreme example' a sexual assault by a lecturer on a student on campus. His Honour did not attempt to explore the limits of the term 'misbehaviour' when used in the award. Nor did Conti J find it necessary to explore the limits of the term in Firebrace v Indigenous Land Corporation [2000] FCA 1257 (2000) 35 ACSR 205, which was concerned with allegations of misbehaviour under the ATSIC Act, made against the Directors of the ILC. The issues before his Honour concerned the procedures adopted for an inquiry into the behaviour of the Directors of the ILC, so there was no occasion for his Honour to attempt the task of explaining what was meant by 'misbehaviour'.
78 One proposition can be gleaned from these limited authorities. It is that the meaning to be given to the word 'misbehaviour' will depend entirely upon the context of the legislative provision in which the term is used. There is no universal meaning of 'misbehaviour' when it is used in a statute or other legislative instrument. When a statute provides for removal from office of a statutory officer on the ground of misbehaviour, it takes its meaning from the statutory context. For instance, it may be assumed that an act of sexual intercourse by a Commissioner of ATSIC would not amount to 'misbehaviour' if it had no connection with the holding of office by the Commissioner concerned. On the other hand, if such an act were part of the harassment of a staff member of ATSIC, a different view would be taken.
79 Another source of guidance as to what might constitute 'misbehaviour' in the context of the holding of an office might come from its use in s 72(ii) of the Constitution, in the phrase 'proved misbehaviour or incapacity' as the only ground or grounds on which a judge appointed to a court under ch III of the Constitution can be removed from office. The Parliamentary Commission of Inquiry into the Hon Justice Murphy of the High Court of Australia had occasion to consider the meaning of 'misbehaviour' in s 72(ii), in its task of assisting Parliament in dealing with allegations made about the conduct of a serving judge of the High Court. See Parliamentary Commission of Inquiry Re The Honourable Mr Justice L K Murphy, Ruling on Meaning of 'Misbehaviour', Canberra, 19 August 1986.
80 The Parliamentary Commission of Inquiry consisted of three eminent retired judges. Each pronounced separate reasons on the question of the meaning of 'misbehaviour'. In the course of his reasons, the Hon Sir George Lush said at 18:
'Accordingly, my opinion is that the word "misbehaviour" in S. 72 is used in its ordinary meaning, and not in the restricted sense of "misconduct in office". It is not confined, either, to conduct of a criminal nature.'
81 Further, Sir George Lush said:
'If their conduct, even in matters remote from their work, is such that it would be judged by the standards of the time to throw doubt on their own suitability to continue in office, or to undermine their authority as judges or the standing of their courts, it may be appropriate to remove them.'
82 The Hon Sir Richard Blackburn offered an opinion including this conclusion at 32:
'The material available for solving this problem of construction suggests that "proved misbehaviour" means such misconduct, whether criminal or not, and whether or not displayed in the actual exercise of judicial functions, as, being morally wrong, demonstrates the unfitness for office of the judge in question.'
83 The third member of the Parliamentary Commission of Inquiry, the Hon Andrew Wells QC said at 44 - 45:
'The issue raised by section 72 would thus appear to pose questions of fact and degree. Somewhere in the gamut of judicial misconduct or impropriety, a High Court judge's conduct, outside the exercise of his judicial function, that displays unfitness to discharge the duties of his high office can no longer be condoned, and becomes misbehaviour so clear and serious that the judge guilty of it can no longer be trusted to do his duty. What he has done then will have destroyed public confidence in his judicial character, and hence in the guarantee that that character should give that he will do the duty expected of him by the Constitution.
...
It is neither possible nor wise to be more specific. To force misbehaviour into the mould of a rigid definition might preclude the word from extending to conduct that clearly calls for condemnation under s.72, but was not - could not have been - foreseen when the mould was cast.
...
Accordingly, the word "misbehaviour" must be held to extend to conduct of the judge in or beyond the execution of his judicial office, that represents so serious a departure from standards of proper behaviour by such a judge that it must be found to have destroyed public confidence that he will continue to do his duty under and pursuant to the Constitution.'
84 The matter was further considered by a Commission of Inquiry appointed by the Queensland Parliament to deal with allegations against the Hon Mr Justice Vasta of the Supreme Court of Queensland. See First Report of the Parliamentary Judges Commission of Inquiry, Brisbane, 1989. Although the word 'misbehaviour' was not used in any legislation directly relevant to the removal of a judge of that court, the relevant legislation made it clear that the judge was entitled to hold office only during 'good behaviour'. Accordingly, the Commission of Inquiry felt able to consider the meaning of 'misbehaviour' as elucidated by the earlier Commission of Inquiry. Having quoted from the three opinions expressed by the members of the earlier Commission of Inquiry, the three members of the Commission of Inquiry into the conduct of Mr Justice Vasta said at par 1.5.9:
'The Commission therefore expresses its view that before an opinion can be reached that behaviour of a Judge of a Supreme Court warrants his removal from office, the behaviour must be such that, having regard to all the relevant surrounding circumstances, no right thinking member of the community could regard the fact of its having taken place as being consistent with the continued proper performance by the judge of judicial duties, and hence with the holding of judicial office. Put another way, if the behaviour is such that, in the circumstances, the judge would, in the eyes of right thinking members of the community, no longer be fit to continue to remain a judge, then the judge has fallen below the standard demanded of members of the judiciary.'
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.
86 This conclusion has two important consequences for the present case. One is that, when the Minister considered the question whether the applicant was guilty of misbehaviour in the general sense, it was necessary for her to consider the nature of the office of Commissioner and the duties attached to that office (there being no separate power to suspend the applicant in his capacity as Chairperson). She had to consider what, if any, impact the applicant's conduct had on his ability to discharge those duties, 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. I shall return to this issue later in these reasons for judgment. The second important consideration is that, in exercising the power pursuant to s 4A(1) of the ATSIC Act to specify behaviour that is taken to be misbehaviour for the purposes of the ATSIC Act, the Minister (in this case the former Minister) was limited by the extent of the meaning of 'misbehaviour' in the ATSIC Act itself. The Minister could only choose to specify behaviour falling within the particular meaning of 'misbehaviour' derived from the context of the provisions of the ATSIC Act as a whole and the nature of the offices specified in it from which a person could be removed for misbehaviour. It was not open to the Minister to specify behaviour selected at large from the range of behaviour that might be viewed subjectively by some people as misbehaviour.
87 To determine the content of the word 'misbehaviour' from its context in the ATSIC Act is no easy task. This is largely because of the unique nature of ATSIC as a body among Australian statutory bodies, and because of the unusual mix of functions and powers it possesses. It was this uniqueness that was a major factor in persuading a single judge of this Court in Re Yanner [2000] FCA 975 (2000) 100 FCR 551, and then a majority of a Full Court on appeal in Yanner v Minister for Aboriginal and Torres Strait Islander Affairs [2001] FCA 36 (2001) 108 FCR 543, that s 31(3)(c) of the ATSIC Act does not amount to a valid conferral on the Court of judicial power. That provision purports to empower the Court to declare that, in spite of a conviction falling within s 31(2), the person ought not to be disqualified from being appointed as a Commissioner. In the Full Court at [85], Kiefel J said:
'It is apparent from the objects of the Act and the duties and powers of the Commission that a Commissioner will take part in some financial and business dealings of the Commission. A Commissioner's principal role would appear to be concerned with the making of policies and their implementation and coordination in conjunction with, and at times at the direction of, the Minister and his department. The role requires responsibilities to both the Minister and the Department and to the Aboriginal and Torres Strait Islander community, whom the Commissioner represents.'
88 What makes ATSIC unique is that, although it is part of the executive arm of government, it also has a vital function in representing the views of indigenous people. This duality of function is of particular importance in the exercise of the policy-formulating function of ATSIC. As well as taking responsibility for the management, including the financial management, of government programs with respect to indigenous people, Commissioners are expected to play the major role in the formulation of those programs and in representing the interests of their constituents in seeking to overcome the disadvantages suffered by indigenous people, acknowledged in the preamble to the ATSIC Act.
89 The word 'misbehaviour' does not apply only to Commissioners. It is also a ground on which holders of the following offices may be removed from office: Regional Councillor; Chairperson of a Regional Council; Deputy Chairperson of a Regional Council; Chief Executive Officer; Director of Evaluation and Audit; Administrator of a Regional Council; Chairperson of the TSRA; Deputy Chairperson of the TSRA; member of the TSRA; TSRA General Manager; TSRA Administrator; IBA Director; and ILC Director. The duties attached to these positions vary widely. All have managerial responsibilities, but among them, Commissioners, Regional Councillors (including the Chairperson and Deputy Chairperson) members of the TSRA (including the Chairperson and Deputy Chairperson) certainly have responsibilities to represent constituents who are indigenous people. Because it is necessary to take into account the nature of the office concerned when construing 'misbehaviour' in a legislative provision, the ATSIC Act offers the additional complication that, to determine the meaning of the word when it is used throughout the ATSIC Act, it is necessary to have regard to the different features of a wide variety of offices.
90 A further complicating factor is that among these officers are some that can only be held by indigenous people. The offices of Commissioner and Regional Councillor are so restricted. So are members of the TSRA, the IBA Chairperson, four out of the eight IBA Directors, the ILC Chairperson and four out of the six ILC Directors. The other offices may or may not be held by indigenous persons, but it is a safe assumption that a body such as ATSIC, established for the purpose of benefiting indigenous people, will be motivated to appoint, or to recommend for appointment, suitably qualified indigenous candidates for office whenever reasonably practicable. In determining the content of the word 'misbehaviour' in the context of the ATSIC Act as a whole, it is therefore necessary to bear in mind that, to a large extent, its impact will be on indigenous people elected and appointed to represent the interests of indigenous people.
91 It is well known that indigenous people tend to be over represented in the criminal justice system in Australia to a very substantial degree. In 1991, the Royal Commission into Aboriginal Deaths In Custody, in its National Report vol 1 at par 1.3.2 said:
'However, what is overwhelmingly different is the rate at which Aboriginal people come into custody, compared with the rate of the general community. The degree of over-representation in police custody, as measured by the Commission's study of police cell custody in August 1988, is twenty-nine times. In Chapters 5 to 9 those matters and their implications are discussed in detail. The ninety-nine who died in custody illustrate that over-representation and in a sense are the victims of it.'
92 Despite the Royal Commission's recommendations, things have not improved very significantly since its report was delivered. Figures published by the Australian Bureau of Statistics on 22 January 2004 demonstrated that 20 per cent of those in prison in Australia at 30 June 2003 were indigenous. The proportion of prisoners who were indigenous rose from 15 per cent in 1993 to 20 per cent in 2003. According to figures published by the Australian Bureau of Statistics on 24 June 2004, the national rate of imprisonment for indigenous persons in the March quarter of 2004 was 1960 per 100 000 adults and had increased since the previous March quarter by 6 per cent. This was compared with an average daily imprisonment rate for the population as a whole of 149 prisoners per 100 000 adults during the March quarter of 2004, an increase of 1 per cent since the March quarter of 2003. The national indigenous rate of imprisonment was 17 times the non-indigenous rate. Western Australia had the highest ratio of indigenous to non-indigenous rates of imprisonment, namely 23 times. In his Social Justice Report for 2003 at 18, the Aboriginal and Torres Strait Islander Social Justice Commissioner reported that indigenous people have consistently constituted 20 per cent of the total prison population since the late 1990s, compared to 14 per cent in 1991. The Commissioner also reported that indigenous people are imprisoned at 16 times the rate of non-indigenous people, a higher rate than in 1991. According to the same report at 197, 2.2 per cent of the population of Australia identified as indigenous in the 2001 census. On the basis of likely under-reporting of indigenous status in the census, the Australian Bureau of Statistics has estimated that the indigenous population in 2001 was 2.4 per cent of the total Australian population.
93 Rates of imprisonment illustrate over-representation of indigenous people in the criminal justice system, but such data as are available with respect to involvement in that system that does not lead to imprisonment, which are more relevant to the present proceeding, tend to bear out that conclusion. A study by G Gardiner involving rates of arrest in Victoria in the 1990s has yielded data published in Indigenous People and Criminal Justice in Victoria: Alleged offenders, rates of arrest and over-representation in the 1990s, Criminal Justice Monograph, Centre for Australian Indigenous Studies, Monash University, 2001 and 'Indigenous Men and The Victoria Police: Alleged Offenders, Rates of Arrest and Over-Representation in the 1990s' (2001) Indigenous Law Bulletin 20. The figures show that, between 1993/94 and 1996/97, the total number of indigenous alleged offenders processed by Victoria Police rose by 21.5 per cent, compared to a rise of 13.1 per cent for non-indigenous alleged offenders. In the same period, the rate of arrest for indigenous people rose from 137 per 1000 to 156 per 1000. In 1996/97, indigenous people in Victoria were 5.2 times more likely than non-indigenous people to have been arrested for an offence compared to a factor of 5.1 in 1993/94. In the same period, arrests for drunkenness rose by 24.2 per cent.
94 In the article published in the Indigenous Law Bulletin, Gardiner produced a table of rates of arrest for various categories of offences per 1000 male adults in 1996/97, comparing indigenous and non-indigenous adult males. As Gardiner said at 22:
'the highest rate of arrest occurs within "other crime". Under this class, the rate of Indigenous male adult alleged offenders processed for the category of "other summary offences" stands at 58 per 1,000 population, compared to a rate for non-Indigenous male adults of 8 per 1,000 population. The greatest number of Indigenous alleged offenders were processed under this category in 1996/97, with the highest arrest rate. Indigenous men are 7 times more likely to be processed for offences in this category than non-Indigenous men in Victoria.'
95 It appears from the specific categories of offences in Gardiner's table that offences within the 'other summary offences' category are those which are generally characterised as 'public order' or 'good order' offences, or 'street offences'. They include offences such as offensive behaviour and obstructing police.
96 Similar information is also available with respect to New South Wales. In 'Contact with the New South Wales court and prison systems: The influence of age, Indigenous status and gender', Crime and Justice Bulletin, no 78, August 2003, D Weatherburn, B Lind and J Hua show the classification of offences for which people appeared in New South Wales courts in 2001, recording only one offence type for each person. The offence type was selected by reference to the seriousness of penalty or, if no offence were proven, by the offence listed first on the indictment or charge sheet. In respect of persons with more than one court appearance during the year in question, the offence referred to the most recent court appearance. Even on this basis, which is likely to have skewed the figures somewhat, the category of 'public order offences' made up 6.1 per cent of offences for all male persons and 5.8 per cent of offences for all female persons, compared with 9.6 per cent for male indigenous persons and 13.2 per cent for female indigenous persons. The authors of the study also found that:
'Nearly 13 per cent of the total Indigenous population in NSW aged 10 and over appeared in court in 2001. The rate of contact between Indigenous males and the NSW court system is even higher. Nearly one in five Indigenous males in NSW appeared in court in 2001 charged with a criminal offence…Even in the older male age groups the rate of Indigenous appearance in court is disturbingly high.
In 2001, nearly four per cent of all Indigenous males aged 50 and over appeared in a NSW court charged with a criminal offence. The corresponding figure for the population as a whole was 0.8 per cent.
...
In 2001 more than six per cent of the Indigenous female population appeared in court (compared with 0.7 per cent for the female population as a whole…)'.
97 Also in New South Wales, in 1999, the Aboriginal Justice Advisory Council produced a report by B Thomas entitled Policing Public Order Offensive Language & Behaviour, The Impact on Aboriginal People. The report examines the offences of offensive language and offensive conduct under ss 4 and 4A of the Summary Offences Act 1988 (NSW) and the impact of those offences on Aboriginal people in New South Wales. The data used are from the New South Wales Bureau of Crime Statistics and Research for the 1998 criminal court statistics. The report found that:
'Aboriginal people continue to be grossly over represented in criminal proceedings for offensive language and offensive conduct charges. On average Aboriginal people are 15 times more likely to be prosecuted for offensive language or conduct. However some local government areas, Inverell and Richmond [R]iver, [r]ecorded rate[s] over 80 times the state average per 1000 people. Offensive language and conduct charges continue to represent a significant proportion of overall court appearances. Aboriginal people constitute 20%, or one fifth, of all people prosecuted for offensive language/ conduct charges in NSW during 1998.'
98 In referring to these statistics, I am not to be taken as suggesting that Aboriginal people or Torres Strait Islanders are necessarily more likely to commit offences, or offences of particular types, than are non-indigenous people. Indeed, as the Royal Commission itself said at par 1.7.1 of its report:
'the more fundamental causes for the over-representation of Aboriginal people in custody are not to be found in the criminal justice system but in those factors which bring Aboriginal people into conflict with the criminal justice system in the first place. The view propounded by this report is that the most significant contributing factor is the disadvantaged and unequal position in which Aboriginal people find themselves in the society - socially, economically and culturally.'
99 Many factors may give rise to a greater likelihood that indigenous people will be arrested and charged in respect of offences for which non-indigenous people may receive nothing more than a caution. A relative propensity to live lives in the open air, rather than in buildings, may be a factor. Perceptions of the degree of threat posed by nuisance behaviour in public places may vary between ethnic groups. This may impact on the exercise of police discretions, which may thereby become biased, even unconsciously. The important point is that, for whatever reason, indigenous people are much more likely to be found by courts to have committed criminal offences, particularly offences of the public order kind, than are non-indigenous people. In construing the word 'misbehaviour' in the context of the ATSIC Act, this is a factor which must be taken into consideration, lest indigenous people, significant numbers of whom will have had experiences with the criminal justice system, be deprived of representation by those who have also had such experiences. The danger of disqualifying too high a proportion of indigenous people from being representatives, because of experiences with the criminal justice system, is also obvious.
100 In this context, I turn to deal with the extent of the power given by s 4A(1) of the ATSIC Act and the validity of the particular provisions of the 2002 Misbehaviour Determination that are in contention in this case.