Clark v Honourable Amanda Vanstone

Suspension when already suspended 57 The submission that the Minister could not suspend the applicant a second time, while the suspension imposed by the previous Minister remained in effect was said by counsel for the applicant to be a matter of construction of s 40 of the ATSIC Act. The proposition put was that, once the power of suspension had been exercised, it was spent, unless and until the first suspension was revoked. The section contemplates an entire process, to be embarked upon and completed as one process. 58 A question of construction of an Act of Parliament invites assistance, where it is available, from the Acts Interpretation Act 1901 (Cth) ('the Acts Interpretation Act'). Section 33(1) of the Acts Interpretation Act provides that, where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as the occasion requires. 59 The application of s 33(1) of the Acts Interpretation Act to s 40 of the ATSIC Act prompts two questions. Does the contrary intention appear? Does the occasion require the exercise of the power when there has already been an exercise of it? As Gummow J said in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211, after referring to s 33(1) of the Acts Interpretation Act: 'But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue.' 60 There is nothing on the face of s 40 of the ATSIC Act to suggest that the powers granted by it are exercisable only on a once-at-a-time basis. Those powers are not inherently incapable of exercise on more than one occasion, even though the events brought about by an earlier exercise are still in progress. Indeed, the scheme of the section suggests that multiple exercise may be at least very desirable, if not necessary. The power of termination, given by subs (5), is certainly exercisable only on the basis of the material on which the power to suspend, given by subs (1), was based. If new material, suggesting instances of misbehaviour or incapacity not dealt with in a notice given pursuant to subs (2), and therefore not dealt with in a statement to Parliament pursuant to subs (3), were to come to light at any time during the process, there is every reason why the Minister ought to be able to begin the process again, based on that new matter. If the circumstances relating to the allegations against a Commissioner change, as they did in the present case by reason of the appeal to the County Court, there is every reason why the Minister should be able to take account of the changed circumstances. If, as occurred in the present case, the Commissioner concerned contends that the initial suspension is invalid, and commences a legal proceeding seeking to establish that proposition, there is no particular reason why the Minister should be compelled to await the outcome of the legal proceeding before exercising the suspension power again. To begin the process again might be the most efficient and sensible way of overcoming defects or inadequacies in the first process. It is unlikely that Parliament intended to exclude that possibility. If it had done so, it might have led to absurd results. 61 Undoubtedly, there would be inconvenience to a Commissioner the subject of repeated exercises of the power. The purpose of s 40 is the protection of ATSIC. The power to initiate the suspension process can only be exercised on the basis of specific material that has come to the notice of the Minister and can form the basis of the notice pursuant to subs (2). In these circumstances, there is no particular reason why Parliament would have regarded the interests of an individual Commissioner as paramount. This is the case particularly because a once-only power would have the potential to place in the hands of a Commissioner who ought to be removed from office the capacity to delay the process of his or her removal. 62 For these reasons, I am of the view that s 40 of the ATSIC Act does not exhibit a contrary intention, such as to oust the provision of s 33(1) of the Acts Interpretation Act to the effect that a statutory power may be exercised from time to time as the occasion requires. 63 I am also of the view that the fact that there had been an earlier exercise of the power to suspend cannot lead to the conclusion that the occasion did not require the further exercise of the power to give a notice pursuant to s 40(2). As I have said, two events supervened the first suspension. One was that the applicant's appeal to the County Court had been successful in part, so that the material on which the first suspension had been based had ceased to be available, in part, to support a possible termination. The second was that the applicant had commenced his proceeding, contending that the first suspension was invalid. The question whether the occasion for the exercise of the power under s 40(2) required its exercise was essentially one for the Minister. Only if it were not open to the Minister to reach the view that the occasion required the exercise of the power could the Court intervene. In the circumstances, it was open to the Minister to take the view that the occasion required a second exercise of the power.

Premature exercise of the power 64 The argument that the power to suspend on the basis of a conviction can only be exercised when all avenues of appeal from the conviction have been exhausted also depends on the construction of s 40. Counsel for the applicant submitted that the phrase 'is convicted' in cl 5(1)(k) of the 2002 Misbehaviour Determination should be construed as having the same meaning as the same phrase in s 40(7)(a), (aa), (b) and (ba). The problem with this argument is that the two uses of the phrase serve different purposes. Section 40(7) is directed to compelling the Minister to terminate the appointment of a Commissioner in certain defined circumstances. It is easy to see that the Minister is not required, or empowered, to perform this duty while the question whether the Commissioner has been convicted of the relevant offence remains undetermined. Clause 5(1)(k) of the 2002 Misbehaviour Determination is part of a legislative scheme relating to removal from office of a number of office-holders under the ATSIC Act. In the case of a Commissioner, the process involves suspension, followed by parliamentary scrutiny and possible termination by the Minister as a matter of discretion. Again, it can be accepted that the Minister cannot terminate the appointment of a Commissioner in the exercise of the discretion under s 40(5) on the basis that the Commissioner has been convicted while there is an appeal pending, which might lead to an acquittal. It is much more difficult to accept that the Minister cannot commence the process by giving the Commissioner notice pursuant to s 40(2), and proceeding to suspend him or her, just because the conviction might be overturned on appeal. 65 Counsel for the applicant cited no authority for the proposition that the phrase 'is convicted' should have words 'and no possibility of appeal remains' notionally inserted into it. On the face of cl 5(1)(k), such a construction appears unnatural. In the context of s 40, for reasons I have given in the previous paragraph, such a limitation would appear to be unnecessary and even artificial. The argument was based on the effects of a suspension on the person suspended, particularly on the effects on his or her employment and standing in both the indigenous community and the wider community. Counsel for the applicant also called in aid the right of people to be represented by a person of their choice, characterising it as a fundamental right that should not be regarded as abrogated without clear legislative expression of intention to that effect. 66 It is true that the power to suspend, pursuant to the process established by s 40 of the ATSIC Act, is a power interfering with the choice of electors in the zone for which the Commissioner concerned was elected as the representative. It is also true that the power to suspend is exercisable on the basis of material unknown to those electors, because it has occurred after the election of the Commissioner. One of the matters that the Minister might be required to consider in determining whether to suspend a Commissioner is the impact of a suspension on the representation of the indigenous people in the Commissioner's zone. This is not to say that the consideration is paramount, nor that it should govern the construction of the phrase 'is convicted'. 67 The powers given to the Minister by s 40 are intended to be protective of ATSIC, and of the rights of representation of indigenous people. The powers are intended to secure the end that those chosen to represent the interests of indigenous people should continue to be persons of standing and propriety, so that they may have credibility in continuing to represent those interests and the deliberations of the Commission may continue to be respected. Again, it can be accepted that the Minister has no power to proceed to terminate the appointment of a Commissioner on the basis of a conviction on which there is an appeal pending. That is not to say that initiation of the suspension process, and even suspension, is impossible while an appeal is pending. Indeed, the protective nature of the powers in s 40 suggests strongly that there might be circumstances demonstrating a need to remove a Commissioner from the deliberations of the Commission, and from the performance of the Commissioner's other functions. For example, a conviction for a serious offence might well warrant suspension of the Commissioner from office pending an appeal, even though it might turn out that the conviction is set aside on appeal. The offence might be of so grave a nature that it would give rise to a serious risk of bringing ATSIC into disrepute if the person were to continue to exercise the functions of a Commissioner before the appeal is determined.

Failure to take into account the evidence in the County Court 68 Counsel for the applicant argued that, in deciding whether to suspend the applicant, the Minister was required to take into account the whole of the evidence that was before the County Court, and to make her own findings on that evidence, particularly as she chose to rely on the facts underlying the conviction, as distinct from the conviction itself, as constituting misbehaviour. If she did not make her own findings of fact, it was argued, she could not determine whether the applicant's conduct, as distinct from the fact of his conviction, constituted misbehaviour for the purposes of s 40 of the ATSIC Act. By not doing so, the Minister failed to take into account relevant considerations, so that her decision was affected by jurisdictional error. 69 The classic statement of the obligation of an administrative decision-maker to take into account relevant considerations is found in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. It is clear from that passage 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. What factors a decision-maker is bound to consider will be determined by construction of the statute conferring the power. In the absence of an exhaustive express statement of the considerations required to be taken into account, it will be necessary to determine by implication from the subject-matter, scope and purpose of the legislation what the considerations are. Thus, in the present case, it is necessary to look at s 40 of the ATSIC Act, in the context of the whole of the ATSIC Act, to determine whether the Minister was obliged to take into account the circumstances of the offence. It is easy to answer this proposition in the affirmative. If the Minister chooses to consider whether the conduct of a Commissioner, leading to a conviction, as distinct from the fact of the conviction itself, is misbehaviour, she could hardly do so without taking into account the actual conduct. This conclusion is insufficient, however, for the applicant to succeed on this argument. 70 The Minister had before her the substantial extracts from the transcript of proceedings in the County Court, with the submissions about various factual issues, and the submission from the solicitors for the applicant that she should obtain and read a copy of the transcript. It does not appear that she obtained and read the transcript. Her reasons for decision suggest that she relied on the findings of the County Court judge in relation to the circumstances of the offence, expressed in his Honour's judgment and sentencing remarks. The true question is, therefore, not whether the Minister failed to take into account relevant considerations, but whether the manner in which she chose to inform herself about the content of those considerations was open to her. The question is whether the Minister was entitled to use his Honour's findings as to the circumstances of the offence, or was obliged to undertake her own investigation of the evidence and make her own findings. 71 The Minister was not determining the issues before her in the manner in which a judge would determine issues. She 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. 72 There is nothing to suggest that the Minister did not give consideration to the extracts from the transcript supplied to her on behalf of the applicant. She was entitled to decline to accept the submission that these extracts should cause her to take a different view of the circumstances of the offence from that expressed by the County Court judge in his judgment and sentencing remarks. This was a matter of the weight of the evidence, and the view that the Minister should defer to the judge's conclusions on the facts was a sensible one. The Minister was not obliged to make her own findings, by going to evidence herself.

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.

The power to make a determination 101 The power given to the Minister by s 4A(1) of the ATSIC Act is not a power to extend the meaning of the word 'misbehaviour'. It is a power to specify, within the ambit of the term 'misbehaviour' when it is used in the ATSIC Act, not a power to amplify the meaning of that term. 102 The purpose of s 4A(1) of the ATSIC Act is plainly to enable the Minister to specify conduct that will, in any event, be regarded as constituting misbehaviour for the purposes of the ATSIC Act. That is to say, those things that are specified will be regarded as misbehaviour for all purposes. The specification of particular types of behaviour will render it unnecessary to consider separately on a particular occasion whether behaviour falling within one of the specified kinds amounts to misbehaviour. It will do so by virtue of having been specified. This has the benefit of allowing all concerned to be aware in advance of the standard of behaviour expected. It gives rise to the obvious requirement that the Minister exercise care, to ensure that every kind of behaviour that is to be specified falls within the meaning of 'misbehaviour' in the ATSIC Act, because the power does not permit the Minister to extend the meaning of that word. 103 The particular issue in the present case is the validity of cl 5(1)(k) of the 2002 Misbehaviour Determination, particularly when read with cl 5(5)(b). There might be a question whether the word 'offence' in cl 5(1)(k) is intended to include an offence under the law of any State or Territory of Australia, and not just an offence under a law of the Commonwealth. There is no definition of the word 'offence' in the ATSIC Act. Sections like s 31, dealing with qualifications for appointment as a Commissioner, refer specifically to 'an offence against a Commonwealth, State or Territory law'. There is no similar expression in the 2002 Misbehaviour Determination. The Minister obviously assumed that a conviction for an offence under State law was sufficient, as she acted on the basis of the applicant's conviction for an offence under Victorian law. Counsel for the applicant raised no contention that this assumption was incorrect. 104 An obvious issue in considering the validity of cl 5(1)(k) is therefore to look at the laws of the various States and Territories, for the purpose of seeing what kinds of offences carry potential sentences of imprisonment. For this purpose, I have concentrated on 'public order' offences. In conjunction with the statistics I have discussed in [91] - [97], information as to the possibility of prison sentences for offences of this type provides some indication of the likely impact on indigenous people of a clause such as cl 5(1)(k). 105 Victoria and Tasmania are the only States in which offences involving intoxication in public remain punishable by imprisonment. Other States and Territories have adopted forms of civil detention as a result of public drunkenness. Section 14 of the Victorian Summary Offences Act makes it punishable by imprisonment for a person to be found drunk and disorderly in a public place. Section 16 makes it an offence for a person, while drunk, to behave in a riotous or disorderly manner in a public place, or to be in charge, in a public place, of a carriage (not including a motor vehicle), horse or cattle or steam engine. This offence also carries a potential sentence of imprisonment. Section 4 of the Police Offences Act 1935 (Tas) makes it an offence for a person to be drunk in a public place, while in charge of a vehicle or in possession of a dangerous weapon. There is a penalty of imprisonment attached. 106 'Nuisance' offences, involving offensive behaviour or language, disorderly conduct, public nuisance or other disturbance of the peace, or loitering are commonly punishable by imprisonment: s 17(1) of the Victorian Summary Offences Act; s 4 of the Summary Offences Act 1988 (NSW); ss 70-71 and 230 of the Criminal Code (Qld); ss 7, 18 and 18A of the Summary Offences Act 1953 (SA); ss 69-70 of the Criminal Code (WA); ss 7, 7A, 12 and 13 of the Police Offences Act 1935 (Tas); ss 47, 47A and 53 of the Summary Offences Act (NT) and ss 151-152, 379 and 396 of the Crimes Act 1900 (ACT). 107 Some States retain a penalty of imprisonment for obstructing or resisting police: s 52(1) of the Victorian Summary Offences Act and s 546C of the Crimes Act 1900 (NSW). Consorting with known criminals remains an offence punishable by imprisonment under s 546A of the Crimes Act 1900 (NSW) and s 56(1) of the Summary Offences Act (NT). Consorting with thieves, prostitutes or vagrants is punishable by imprisonment under s 13 of the Summary Offences Act 1953 (SA) and s 6(1) of the Police Offences Act 1935 (Tas). Begging remains an offence punishable by imprisonment under s 58(1) of the Police Offences Act 1935 (Tas) and s 56(1)(c) of the Summary Offences Act (NT). 108 Two things are evident from this brief survey. One is that whether particular conduct amounts to misbehaviour for the purposes of cl 5(1)(k) of the 2002 Misbehaviour Determination may depend upon where the person is when engaging in that conduct. It is 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 is therefore an element of chance in the application of cl 5(1)(k). The other point is that it is plainly possible for quite trivial conduct to amount to misbehaviour for the purposes of cl 5(1)(k). Clause 5(5)(b) makes it abundantly clear that even the most trivial of offences are to be regarded as included within the concept of misbehaviour, when it provides that a finding of guilt and a discharge without a conviction being recorded is sufficient to satisfy cl 5(1)(k). 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. 109 There is one further impact of cl 5(1)(k) of the 2002 Misbehaviour Determination that must be considered. It involves a comparison between that clause and provisions found in other legislation relating to standards of behaviour expected of office-holders of various kinds. So far as persons elected to office are concerned, s 215(1) of Sch 1B to the Workplace Relations Act 1996 (Cth) provides for the disqualification of a person convicted of a 'prescribed offence' to hold elected office in organisations registered under that Act. Save for offences involving dishonesty, which are prescribed offences if they are punishable by imprisonment for a period of three months or more, and for offences under the Workplace Relations Act 1996 (Cth) itself, particularly those relating to the formation, registration or management of organisations, a prescribed offence is defined as an offence involving the intentional use of violence, the intentional causing of death or injury or the intentional damaging or destruction of property. An actual term of imprisonment is required. See ss 212 and 213 of Sch 1B. 110 So far as State legislation is concerned, no State appears to have a provision in its legislation relating to the holding of office by municipal councillors providing for actual or potential disqualification on the basis of a conviction, or a finding of guilt, of any offence for which a sentence of imprisonment may be imposed. So far as ministerial appointees to office are concerned, counsel for the applicant took me to various provisions of the National Health Regulations 1954 (Cth), the Fuel Quality Standards Regulations 2001 (Cth), the Therapeutic Goods Regulations 1990 (Cth), the Australian Radiation Protection and Nuclear Safety Regulations 1999 (Cth), the Patents Regulations 1991 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth), the Companies Auditors and Liquidators Disciplinary Board Ordinance 1982 (ACT), made under the Seat of Government Administration Act 1910 (Cth) and the Australian Law Reform Commission Act 1996 (Cth). Each involves either mandatory or discretionary loss of office by persons constituting various tribunals and boards, committees, panels or councils, who are appointed by or as a result of ministerial decisions. In no case can office be lost merely upon conviction, or a finding of guilt, in respect of any offence at all punishable by imprisonment. 111 Counsel for the Minister in the present case was not able to suggest to me the presence of a comparable standard in any legislative instrument. He emphasised that there are numerous provisions in legislation pursuant to which office-holders must or may be dismissed from office on the basis of misbehaviour. So much is clear. It is also clear, as I have already said, that the word 'misbehaviour' in such provisions must be construed by reference to the nature of the office concerned. The unique feature of the 2002 Misbehaviour Determination is that cl 5(1)(k), in combination with cl 5(5)(b), purports to fix the meaning of misbehaviour, for the purpose of a range of offices under the ATSIC Act, in one respect, namely the fact that a person has been found guilty of an offence for which he or she might have been imprisoned. That is not a standard fixed by any other legislation, whether as a ground for mandatory loss of office, or as a ground for discretionary removal from office, whether the office is an elected or appointed one. 112 The effect of this is 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. The fact that such a standard has been imposed in respect of a body such as ATSIC raises the question whether the power under s 4A(1) of the ATSIC Act extends so far as to enable such a standard to be fixed. As I have said, the elected officials in ATSIC, particularly Commissioners and Regional Councillors, as well as some other office-holders, are required to be indigenous people. Although the holders of most of the appointed offices are not so required, there is a likelihood that many of them will also be indigenous. The effect of cl 5(1)(k) of the 2002 Misbehaviour Determination is therefore to require a higher standard of behaviour of office-holders in ATSIC, who are predominantly indigenous, than is required by any other legislation in respect of office-holders generally, who are predominantly non-indigenous. 113 For this to be justified, it would be necessary to construe the power given by s 4A(1) of the ATSIC Act as authorising racial discrimination as defined in art 1 of the International Convention on the Elimination of all Forms of Racial Discrimination ('the Racial Discrimination Convention), namely a 'distinction, exclusion, restriction or preference based on race…which has the purpose or effect of nullifying or impairing…the enjoyment or exercise, on an equal footing' of a right to continue to hold an office to which a person has been elected or appointed. To construe s 4A(1) of the ATSIC Act in this way would be to construe it in a manner that would put Australia in breach of art 2 1(a) of the Racial Discrimination Convention, to which Australia is a signatory and which Australia has ratified. If there is a construction of s 4A(1) of the ATSIC Act that would avoid this consequence, it is to be preferred to a construction that would so put Australia in breach of its international obligations. Such a construction would be to read down s 4A(1) so that it does not extend so far. 114 Further, s 10(1) of the Racial Discrimination Act provides: '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.' 115 This provision operates to require that s 4A(1) of the ATSIC Act or the 2002 Misbehaviour Determination be read down, at least to the extent that indigenous office-holders in ATSIC became 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. Counsel for the Minister attempted to argue that, because the ATSIC Act is a special measure for the benefit of indigenous people, within the meaning of s 8 of the Racial Discrimination Act, it follows that any provision within it cannot be subject to s 10(1). This argument cannot be accepted. Section 10(1) of the Racial Discrimination Act operates with respect to individual provisions. Although it is possible to characterise the ATSIC Act as a 'special measure', s 10(1) would still operate to ensure equality with respect to office-holders. Section 10(1) therefore operates of its own force to require the reading down of cl 5(1)(k) and cl 5(5)(b) of the 2002 Misbehaviour Determination, or operates to read down s 4A(1) of the ATSIC Act so that it did not extend so far as to authorise a determination in the terms of those clauses. It is preferable to regard s 4A(1) of the ATSIC Act as requiring reading down, so as to avoid the consequence of unlawful racial discrimination. 116 As I have said, the plain purpose of s 4A(1) of the ATSIC Act is to authorise the Minister, by determination, to specify behaviour that is taken to be misbehaviour for the purposes of the ATSIC Act. The significance of the section is that what is specified to be misbehaviour in the exercise of the power will amount to misbehaviour for all purposes of the ATSIC Act. There can be no doubt that the power is to be read in the context of the ATSIC Act, and is to be construed as limited by the legislative purpose. The considerations I have discussed so far tend to suggest that the power does not extend so far as to authorise a determination in the terms of cl 5(1)(k) of the 2002 Misbehaviour Determination, particularly when read together with cl 5(5)(b). There are considerations pointing in the other direction, which need to be considered. 117 The first such consideration is a general one. Section 4A(3) provides that a determination is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act. This means that the determination has been laid before both Houses of Parliament and has not been disallowed by either House, in the exercise of the power given by s 48(4) of the Acts Interpretation Act. It appears that the 2002 Misbehaviour Determination was not the subject of a motion for disallowance in either House of Parliament. There is apparently no record of any discussion of the terms of the 2002 Misbehaviour Determination, but there is a record of remarks made in the Senate with respect to the 1994 Misbehaviour Determination. On 30 May 1994, Senator Colston gave notice that he proposed to move that the 1994 Misbehaviour Determination be disallowed. He referred particularly to cll 3(1)(j) and 3(2), which are in terms identical to cll 5(1)(k) and 5(5) of the 2002 Misbehaviour Determination. Senator Colston indicated that the Standing Committee on Regulations and Ordinances had written to the Minister seeking advice on whether cll 3(1)(j) and 3(2) 'may operate harshly and breach the personal rights of those affected'. On 29 June 1994, Senator Colston gave notice of intention to withdraw the motion for disallowance. He did so on the basis that the then Minister for Aboriginal and Torres Strait Islander Affairs had provided information meeting the concerns of the Standing Committee on Regulations and Ordinances. Correspondence read into the record indicated that the then Minister persuaded the committee that there were sufficient safeguards. It is no doubt a weighty matter that Parliament had the power to disallow the 2002 Misbehaviour Determination if it thought fit. It is a matter that goes to the construction of the power in s 4A(1) of the ATSIC Act, suggesting that it should be read more generously than might otherwise be the case. Parliament cannot widen the power, however, by refraining from disallowing something that goes beyond it. Without legislating further, Parliament cannot extend a power already given in legislation. The question therefore remains whether the extent of the power in s 4A(1) has been exceeded. 118 The other considerations tending to support the validity of cll 5(1)(k) and 5(5)(b) of the 2002 Misbehaviour Determination are perhaps of less general significance. One is that loss of office on the ground of misbehaviour is a matter of the exercise of a discretion. It might be supposed that there is no harm in a specification of misbehaviour that includes a finding of guilt of any offence for which a sentence of imprisonment might be imposed, when the Minister exercising the power can in any event ignore findings in respect of offences that do not bear upon fitness to hold the office concerned. It is true that the fact that termination of the office is discretionary is something of a safeguard. The problem is that exercises of discretion are just that. The ATSIC Act operates in an area capable of generating political antagonisms and emotions to a high degree. There is no guarantee that, just because a Minister has the ability to decide not to dismiss from office a Commissioner or other officer whose conduct is not serious or is unrelated to the expectations of performance of the office concerned, the discretion will always be exercised favourably to the office-holder.

119 The remaining consideration is peculiar to those who can only be dismissed from their offices after the procedure laid down in s 40(3) - (5) of the ATSIC Act, or its equivalent, has been followed. These provide for the possible disallowance by Parliament of a suspension. Again, there is something of a safeguard in this, but the question is as to its adequacy. Issues such as the representation of the interests of indigenous people and the rights of office-holders may not occupy the primary place in the minds of all members of Parliament when political issues intervene. Party loyalty and other considerations might override those of justice. There is no guarantee that the safeguard will operate in all cases in which it should. 120 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. 121 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. 122 The conclusion that cll 5(1)(k) and 5(5)(b) of the 2002 Misbehaviour Determination exceed the power given to the Minister by s 4A(1) of the ATSIC Act requires an examination of the question whether the clauses are wholly invalid, or can be saved by being read down in accordance with s 46(1)(b) of the Acts Interpretation Act.

Reading Down 123 Section 46(1)(b) of the Acts Interpretation Act provides: 'Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then: ... (b) any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.' 124 In Harrington v Lowe (1996) 190 CLR 311 at 323, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said of s 46(1)(b) of the Acts Interpretation Act: 'This is a reading down provision in relation to rules, regulations and by-laws, which corresponds to the provision, as regards statutes, made in s 15A of the Interpretation Act.' 125 In Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 347-8, Dawson J said in relation to s 15A of the Acts Interpretation Act: 'The effect of s 15A is to reverse the presumption that an enactment is intended to operate as a whole. Under s 15A each provision is to be read upon the basis that it was the intention of the legislature that it should be given effect to the extent that it is not in excess of legislative power. That process is, of course, most conveniently carried out where the statute is organised so that its various applications are separately expressed, thus enabling the valid portions to be simply severed from the invalid. Even then, s 15A will not operate to save the remaining provisions if, after severance, they have a different operation or effect from that which they had before severance, for the intention of Parliament is to be discerned by reading the statute as a whole and that intention is not to be displaced as a result of a reading down process under s 15A. It is one thing to give that which remains the operation which it was always intended to have. It is another thing to give it a different operation as a result of severing the invalid from the valid.' [Footnotes omitted.] 126 In the same case at 335, Mason CJ referred to s 15A of the Acts Interpretation Act as requiring 'that the provision be applied distributively so that it is read as covering those applications within power'. 127 In the present case, severance of cll 5(1)(k) and 5(5)(b) from the rest of the 2002 Misbehaviour Determination would be possible. The question, however, is whether it is possible to read down those clauses so that they apply only to the extent of the power given by s 4A(1) of the ATSIC Act, when that power itself is read down in the manner I have described. 128 The first question is whether the determination is an 'instrument', for the purposes of s 46(1)(b). I am of the view that it is. Although the majority of the High Court in Harrington referred to s 46(1)(b) as operating 'in relation to rules, regulations and by-laws', their Honours were not intending to confine the provision in that way. Indeed, to do so would be to ignore the text of s 46(1)(b) itself. Section 46(1) makes it clear that 'instrument' is to be broader than those specific items that are included, namely rules, regulations and by-laws. Even if the word 'instrument' is to take on a meaning restricted by the category of included items, it is still sufficiently broad to include a determination pursuant to s 4A(1) of the ATSIC Act. Such a determination is in the nature of a rule or by-law. The fact that Parliament has expressly made it a disallowable instrument, by s 4A(3) of the ATSIC Act, supports this view. 129 Counsel for the applicant attempted to argue that the 2002 Misbehaviour Determination was not an 'instrument' for the purposes of s 46(1)(b) of the Acts Interpretation Act because it did not 'specify' anything, and therefore did not exercise the power in s 4A(1) of the ATSIC Act at all. She relied on the view I expressed as to an altogether different document in Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 276 (2003) 78 ALD 65 at [29]. That case is readily distinguishable. Taking into account the power given by s 46(2) of the Acts Interpretation Act, to specify by identifying by reference to a class or classes, there can be little doubt that cl 5(1)(k) specifies. It simply specifies a class of offences broader than that permitted by s 4A(1) of the ATSIC Act, when the power to specify in that provision is construed correctly. 130 Once this is accepted, there is no difficulty in applying s 46(1)(b), so as to read down s 5(1)(k) and, if necessary, cl 5(5)(b) of the 2002 Misbehaviour Determination so as to apply to a narrower class of offences than the class to which those clauses apply in their express terms. The definition of the narrower class cannot be precise, but need not be. It is enough to say that 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. 131 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. This is exactly the same issue that, as I have already held, the Minister was obliged to consider in determining whether the applicant was to be found guilty of misbehaviour within the general meaning of that word in the context of the ATSIC Act, without resort to the 2002 Misbehaviour Determination. It is therefore necessary to turn to the Minister's reasons, for the purpose of seeing whether she did consider this essential issue.

The Minister's reasons 132 In approaching the Minister's reasons for her suspension decision, I am conscious that: 'the reasons of an administrative decision-maker are meant to inform and not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.' 133 See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Minister is not a professional decision-maker, accustomed to writing reasons. 134 The Minister's reasons do show that she acted on the assumption that it was appropriate to make a finding of misbehaviour on the basis that the applicant had been convicted of an offence falling within the literal terms of cl 5(1)(k) of the 2002 Misbehaviour Determination. 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, namely the impact of the conviction on the capacity of the applicant to continue to hold the office of Commissioner. 135 As to the Minister's finding that the applicant'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', the situation is less clear. 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. Even then, the Minister made no positive findings about matters such as capacity for office or the significance of the unanimous expression by the board of ATSIC of support for the applicant as a person who should continue in the office of Chairperson. All that the Minister did was to summarise the submissions made on behalf of the applicant and to reject them. 136 There is nothing that indicates any awareness on the part of the Minister of the need to consider whether a finding of misbehaviour, other than by application of the 2002 Misbehaviour Determination, could be made on any basis other than that she was entitled to disprove of the applicant's conduct. I am therefore of the view that, in deciding whether to suspend the applicant on the ground of the 'general concept of misbehaviour', the Minister's reasons demonstrate that she failed to take into account the same relevant consideration as in the case of misbehaviour as defined by cl 5(1)(k) of the 2002 Misbehaviour Determination. 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.

The effect on the two decisions 137 It is now well established that a failure to take into account a relevant consideration, of a kind that is required to be taken into account by the nature of the relevant legislative scheme, in a way which affects the exercise of a decision-making power is to be regarded as a jurisdictional error. See Craig v State of South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed. There can be no doubt that the failure to consider the limitations on the meaning of 'misbehaviour' in the context of the ATSIC Act, and on cl 5(1)(k) of the 2002 Misbehaviour Determination, which led to the failure to consider the effect of the applicant's conduct on his capacity to continue to hold the office of Commissioner, affected the exercise of the power to suspend in the applicant's case. Indeed, on the face of it, it is difficult to see how the Minister could reasonably have taken the view that the applicant's conviction for obstructing police, or his conduct leading to that conviction, could have affected his capacity to represent the interests of indigenous people or to be engaged in the variety of administrative, managerial and financial tasks required of a Commissioner. Only by assuming that misbehaviour had been established and by treating those considerations as relevant only to the question whether a suspension decision ought to be made could the Minister have arrived at the conclusion that she reached. 138 It follows from this that the suspension decision must be set aside. It does not necessarily follow that the decision to provide the applicant with a notice pursuant to s 40(2) of the ATSIC Act was also flawed. The provisions of s 40 do not contain any indication of any particular jurisdictional fact upon which a decision to give a notice under s 40(2) should hinge. Section 40(2) itself is in the form of a negative provision, constraining the exercise of the power to suspend under s 40(1) unless the notice has first been given. There is no reason, therefore, to suppose that the Minister is obliged to form any sort of concluded view as to the relationship between a conviction, or the conduct leading to it, and the statutory meaning of 'misbehaviour' or the restricted extent of cl 5(1)(k) of the 2002 Misbehaviour Determination, before giving the notice. At that stage of the process, it is likely that the Minister will not have access to as much information about the nature and circumstances of a conviction as she will have when she comes to consider whether to suspend the recipient of the notice. Indeed, the Minister will certainly not have whatever information and submissions the recipient of the notice provides for the purpose of consideration at the stage of deciding whether to suspend. Circumstances might arise in which the need to protect the interests of ATSIC require swift action on the part of the Minister to give notice. For instance, a conviction for a really serious offence, demonstrating that great harm would be done to ATSIC if the offender were to continue in office, might suggest that the notice should be given as quickly as possible, and without the need to take time to decide whether a suspension could, in any event, result. It might be said that, in the case of a really serious offence of such a kind, the notice is so obviously justified and little thought is required to reach this conclusion. Undoubtedly, that is so, but cases close to the borderline might be much more difficult. 139 It is true that the giving of notice compels the recipient of it to respond, or to take the risk that a decision to suspend might be made. The disadvantage to the recipient of the notice in being called upon to respond to it is relatively small, however, compared to the interest of the protection of the integrity of ATSIC. 140 It seems to me that the better view is that, in order to give notice pursuant to s 40(2) of the ATSIC Act, it is only necessary for the Minister to form the view that suspension might be a possible outcome. This is necessarily a low threshold. Only if no reasonable Minister could take the view that the conviction or conduct in a particular case could be sufficiently related to the holding of office could it be said that a decision to give a notice pursuant to s 40(2) was invalid. At least, in all but cases in which the conduct concerned could not conceivably amount to misbehaviour of a relevant kind, the notice will be valid if it specifies the conduct that has come to the Minister's notice. 141 In the present case, the connection between the offence of which the applicant has been convicted (or his conduct in obstructing police, on which the conviction is based) and his capacity to hold the office of Commissioner in ATSIC is far from obvious. Despite this, counsel for the applicant did not make the submission that no reasonable Minister could have taken the view that the conviction, and the facts on which the conviction was based, had the relevant connection. Because no such submission was made, I do not determine that issue. I therefore proceed on the basis that the notice in the Minister's letter dated 23 December 2003 was a valid notice pursuant to s 40(2) of the ATSIC Act, calling upon the applicant to show cause why he should not be suspended from the office of Commissioner.

Conclusion 142 It follows from this reasoning that the decision to suspend the applicant from his office as a Commissioner of ATSIC is subject to jurisdictional error and should be set aside. The decision to give him a notice pursuant to s 40(2) of the ATSIC Act is not so subject and remains alive. 143 I have found in favour of the applicant on the additional ground that he sought to raise at the hearing, which was beyond the terms of the amended application as it then stood. It follows that I should grant leave to the applicant to amend the application, in the form of the further amended application, filed on 3 May 2004. 144 In the further amended application, the applicant sought an order in the nature of certiorari, quashing the decision of the Minister of 22 January 2004 to suspend the applicant from office as a Commissioner of ATSIC. Certiorari is a discretionary remedy, but counsel for the Minister did not suggest that, if the decision were subject to jurisdictional error, I should exercise any discretion against making an order that would have the effect of setting aside the decision. There should therefore be an order in the nature of certiorari, removing into this Court the decision of 22 January 2004, for the purpose of quashing it, and quashing that decision. 145 The applicant sought a declaration to the effect that the Minister was not entitled to suspend him while the first suspension was in force. He has failed to establish the grounds for such a declaration. He also sought a declaration that the notice given by the Minister to the applicant on 23 December 2003 was invalid and of no effect. He has failed to establish the ground for this relief. Two further declarations were sought, relating to the meaning and effect of cll 5(1)(k) and 5(5) of the 2002 Misbehaviour Determination. Because of the view that I have taken, that those clauses require to be read down so as to fall within the limits of the power given by s 4A(1) of the ATSIC Act, a declaration as to invalidity would be inappropriate. A declaration as to the meaning could not be framed precisely. It seems to me that no declaration of any kind should be made. Accordingly, apart from the question of costs, the application should be dismissed other than for the order quashing the suspension decision. 146 As to costs, the applicant has failed on several grounds, and has failed to have one of the decisions challenged set aside. He has been successful, however, with respect to a major part of the case. It could not be said that the arguments in respect of which the applicant did not succeed extended the case to a significant degree, either as to the material canvassed, or as to the time occupied. Accordingly, I see no reason why the applicant should not have his costs of the proceeding, on the basis that they follow the event. I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Counsel for the Respondent: R Orr QC and C Horan

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 29 and 30 April 2004