reasonable proportionality
140 The primary judge concluded that cl 5(1)(k) could not be sustained because it operated, or had the potential to operate, arbitrarily or capriciously. In effect, this was a separate and distinct basis for holding that the Minister's decision could not be supported insofar as it rested upon the 2002 Determination.
141 It is now tolerably clear that delegated legislation, made pursuant to a purposive empowering provision, will be struck down if it fails the test of reasonable proportionality. In some of the authorities, this principle is referred to in terms of "arbitrariness", "capriciousness" or "unreasonableness". While these concepts can, and sometimes are, distinguished from "reasonable proportionality", they can also be regarded as indicia of a failure to satisfy that test. The primary judge did not use the term "reasonable proportionality". However, his finding that the relevant clause was "capable of operating arbitrarily or capriciously" was tantamount to a finding that it failed that test.
142 Pearce contends that there is a distinction between unreasonableness and lack of reasonable proportionality. It is argued that unreasonableness may be more difficult to establish, bearing in mind that it applies to all delegated legislation, and not merely that which is made pursuant to an empowering provision that is purposive. Pearce argues that when it comes to proportionality, there is a slightly lower threshold of invalidity. The question then is whether the delegated legislation is capable of being reasonably considered to be appropriate and adapted to achieve the prescribed purpose. A finding that the impugned clause is capable of operating arbitrarily or capriciously would seem to satisfy both tests, but certainly would meet the latter. See generally M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3rd ed, 2004) ("Aronson") at 342-4 and 347-8, where it is suggested that Australian courts have generally been more receptive to "proportionality" as a basis for reviewing delegated legislation than they have to the concept of "unreasonableness".
143 In Brunswick Corporation v Stewart (1941) 65 CLR 88, Starke J noted, at 97, that it had been argued that:
… the by-law is beyond power for other reasons or is uncertain, that is, does not contain adequate information as to the duties of those who are to obey it … or is unreasonable, that is, in this connection, so oppressive or capricious that no reasonable mind can justify it...
144 His Honour did not criticise this formulation as a proper basis for challenging the validity of the by-law in question, although he held that it was valid.
145 In Mixnam's Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214, Diplock LJ, (in a passage that was apparently approved by the House of Lords, see Chertsey Urban District Council v Mixnam's Properties Ltd [1965] AC 735) observed at 237-8 that:
… the kind of unreasonableness which invalidates a by-law is not the antonym of "reasonableness" in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say; "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires"…
146 In Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 ("Austral Fisheries"), a Full Court of this Court upheld a decision invalidating the exercise of the Minister's power under a provision of the Fisheries Act 1952 (Cth). The Minister's decision involved the allocation of units of fishing capacity. It was held that the Minister's power had been exercised capriciously and irrationally, and in a manner capable of producing absurd results.
147 In that case, Lockhart J set out at some length the circumstances in which delegated legislation would be invalid on the ground of unreasonableness. His Honour said at 384:
Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislating authority to enact laws.
See also the joint judgment of Beaumont and Hill JJ at 400-1.
148 Though Lockhart J spoke of "unreasonableness", his Honour plainly had in mind the considerations that now tend to be subsumed within the notion of "reasonable proportionality". The move from "unreasonableness" to "lack of reasonable proportionality" appears linked to the increasing use by the High Court of the latter concept in certain aspects of constitutional law: see generally B Selway, "The Rise and Rise of the Reasonable Proportionality Test in Public Law" (1996) 7 Public Law Review 212. This appears to reflect a divergence from the approach in the United Kingdom, where "unreasonableness" per se is still regarded as a ground for invalidating subordinate legislation. See generally HWR Wade and CF Forsyth, Administrative Law (8th ed, 2000) at 860-2. Nonetheless, there are dicta, even in this country, that suggest that regulations can be challenged purely on the basis of unreasonableness: De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502. Likewise, see Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300 at 467-8 per Tamberlin J.
149 A court will not easily be persuaded to strike down delegated legislation on the ground of lack of reasonable proportionality. The reason is plain. Courts are naturally wary of the dangers of becoming embroiled in merits review under the guise of judicial review. Unless "proportionality", as a basis for challenge, is kept strictly in check, there is a risk that courts will transgress their legitimate function. In the context of challenges to by-laws, there is an additional consideration favouring judicial restraint. Courts must give full weight to the fact that by-laws are made by local government bodies, whose members are democratically elected and directly accountable to their constituents. Despite these considerations, courts must always be prepared to perform their constitutional duty, and declare invalid delegated legislation that has been unlawfully promulgated.
150 There are plainly some analogies to be drawn between delegated legislation that lacks reasonable proportionality and delegated legislation that is logically fallacious. There are several recent examples of logical fallaciousness in such legislation resulting in its invalidity. One such example is the formula used to allocate catch in the Austral Fisheries case. See also La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, but note Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 at 578-80.
151 However, the principle goes beyond logical fallaciousness. Delegated legislation that has the potential to operate arbitrarily or capriciously has, on occasion been struck down, and solely on that basis.
152 Some commentators have suggested that there should be a presumption that delegated legislation, no matter how oppressive it has the potential to be, will be enforced with restraint. There can be no justification for such an approach, either empirically or in principle. A belief that those entrusted with statutory power will always exercise that power in an appropriate way, is ultimately destructive of the rule of law. As Pearce notes at 238:
If a legitimate interpretation of a by-law can impose an unreasonable obligation on a person, it would seem that the by-law falls within the test of invalidity … It is no answer that the by-law may be reasonably enforced. Those subject to the actions of officials know too well the use that can be made of power to harass or the pedantic view that can be taken of legislation. The question asked should be what can be required under the by-law; not what can it be expected the enforcing authority will require. The latter is speculative, and there can be no certainty that the administering authority will enforce the by-law reasonably…
153 Insofar as the "reasonable proportionality test" has come to be used as a basis for invalidating delegated legislation, it should be noted that there are other limitations upon its applicability. Selway J has suggested, by analogy with recent constitutional interpretative developments, that such legislation can only be struck down on this ground if the relevant power to make such legislation is "purposive".
154 A "purposive power" is one where the criterion of validity is that the law-maker achieve a certain purpose or object. Under the Constitution, the High Court has held that there are at least two such powers - external affairs and defence. The validity of a statutory provision purportedly supported by one or other of these powers is determined by whether that provision can be reasonably considered as "appropriate and adapted" to carrying out an object that impresses it with the character of the particular power. See for example Commonwealth v Tasmania ("Tasmanian Dam case") (1983) 158 CLR 1 at 172 and 179 (per Murphy J), 232 (per Brennan J) and 259 (per Deane J); Polyukhovich v Commonwealth (1991) 172 CLR 501 at 592-3 (per Brennan J); and Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 57 (per Gaudron J).
155 The validity of delegated legislation that stems from empowering provisions that are purposive in nature is determined in much the same way. In Williams v Melbourne Corporation (1933) 49 CLR 142, Dixon J said at 155:
To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject. The true nature and purpose of the power must be determined, and it must often be necessary to examine to operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not have reasonably have been adopted as a means of attaining the ends of the power. In such a case, the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power.
156 Early statements of the proportionality test, in its application to delegated legislation, are to be found in the Tasmanian Dam case. Deane J said, at 264-5, that the regulations under challenge in that case would only be valid, under the relevant empowering provision, if they "were capable of being reasonably considered to be appropriate and adapted to giving effect to the Convention" (that being the Convention for the Protection of the World Cultural and Natural Heritage).
157 A similar approach was adopted in South Australia v Tanner (1989) 166 CLR 161. In the joint judgment of Wilson, Dawson, Toohey and Gaudron JJ, their Honours observed, at 167-8, that the parties were agreed that the test of validity was whether the regulation was capable of being "considered to be reasonably proportionate to the end to be achieved". They noted that the "line between the opposing arguments" was "finely drawn", and that, in the end, the answer was "largely a matter of impression". They stressed that it was "not enough that the court itself thinks the regulation inexpedient or misguided". It had to be "so lacking in reasonable proportionality as not to be a real exercise of the power".
158 In Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 ("Dover Fisheries"), Gummow J, in a scholarly and detailed analysis, discussed "reasonable proportionality" as a criterion for assessment of validity, in both constitutional and administrative law. His Honour's observations are lengthy, but bear repeating in full. He said at 575-8:
The concept of "reasonable proportionality" as a criterion for assessment of validity in constitutional and administrative law appears to have entered the stream of the common law from Europe and, in particular, from the jurisprudence of the Court of Justice of the European Communities and the European Court of Human Rights. If a State is to justify interference by its executive, legislature or courts with the freedom of expression guaranteed by Article 10 of the European Convention For The Protection Of Human Rights And Fundamental Freedoms, the interference must correspond to "pressing social need" and be "proportionate" to the "legitimate aim" pursued by the State: Sunday Times v United Kingdom (1979) 2 EHRR 245 at 277-278, 280. The validity of national legislation restricting trade and working hours on Sundays, in the light of Art 30 of the EEC Treaty (which prohibits between member States "quantitative restrictions on imports and all measures having equivalent effect") is assessed by application of standards of "necessity" and "proportionality": see the litigious saga of the British Sunday trading legislation disclosed in Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227 at 277-278, and Stoke-on-Trent City Council v B & Q Plc [1993] 2 All ER 297. Here, "proportionality" has been said to mean that, "in short, a reasonable relationship must exist between aims and means": Koopmans, "European Public Law: Reality and Prospects" [1991] PL 53 at 58.
In English administrative law, it seemed that the concept of proportionality might be adopted as a ground of review of alleged abuse of statutory discretion, perhaps as an adjunct to Wednesbury unreasonableness: see the discussion in Beatson and Matthews, Administrative Law: Cases and Materials (2nd ed, 1989); Cane, An Introduction to Administrative Law (2nd ed, 1992), pp 211-212. However, in R v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696 at 762, Lord Ackner said:
"Clearly a decision by a minister which suffers from a total lack of proportionality will qualify for the Wednesbury unreasonable epithet. It is, ex hypothesi, a decision which no reasonable minister could make. This is, however, a different and severer test.
Mr Lester is asking your Lordships to adopt a different principle - the principle of 'proportionality' which is recognised in the administrative law of several members of the European Economic Community. What is urged is a further development in English administrative law, which Lord Diplock viewed as a possibility in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410.
In his written submissions, Mr Lester was at pains to record ... that 'There is a clear distinction between an appeal on the merits and a review based on whether the principle of proportionality has been satisfied'. He was prepared to accept that to stray into the realms of appellate jurisdiction involves the courts in a wrongful usurpation of power. Yet in order to invest the proportionality test with a higher status than the Wednesbury test, an inquiry into and a decision upon the merits cannot be avoided ... The European test of 'whether the "interference" complained of corresponds to a "pressing social need"' (Sunday Times v United Kingdom (1979) 2 EHRR 245 at 277) must ultimately result in the question 'Is the particular decision acceptable?' and this must involve a review of the merits of the decision. Unless and until Parliament incorporates the Convention into domestic law ... there appears to me to be at present no basis upon which the proportionality doctrine applied by the European Court can be followed by the courts of this country."
Lord Lowry (at 766-767) said that to introduce the proportionality doctrine would lead to abuse of the supervisory jurisdiction of the courts. Lord Templeman (at 756) seemed to treat proportionality as an aspect of the Wednesbury doctrine. Lords Bridge (at 749) and Roskill (at 750) were non-committal.
However, in Australia the proportionality doctrine has taken root and, indeed, extended its reach into the heartland of federal constitutional law. First, the rather special and "purposive" nature of the legislative power with respect to external affairs in its application to existing and reasonably apprehended international obligations, led to its confinement to what may reasonably be regarded as appropriate means for implementation of the obligation: Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1 at 172, 232-233, 259-261; Richardson v Forestry Commission (1988) 164 CLR 261 at 295-296, 303, 311-312, 326, 336. Secondly, the doctrine has been applied to the operation of constitutional prohibitions or restraints upon the scope of legislative power, whether these prohibitions or restraints arise expressly, as with s 92 of the Constitution, (Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 473-474) or impliedly (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 50, 76-77, 94-95). Thirdly, the doctrine has been applied generally as a criterion of validity of provisions which fall outside the "core" of the subject matters of certain of those legislative powers in s 51 which are not "purposive" powers; see, as to the trade marks and corporations powers, Davis v Commonwealth (1988) 166 CLR 79 at 99-100, and as to the conciliation and arbitration power, Nationwide News Pty Ltd v Wills (supra) at 28-31 per Mason CJ, Dawson J contra at 88-89.
In Nationwide News at 30-31, Mason CJ said:
"Davis establishes two propositions. First, that, even if the purpose of a law is to achieve an end within power, it will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of an end within power, ie, unless it is capable of being considered to be reasonably proportionate to the pursuit of that end. Secondly, in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression."
These propositions are important, but as yet scarcely explored by the Courts when dealing with the immediately significant operation of the concept for these appeals. This is as a test of validity of delegated legislation. In that context, one ordinarily would not characterise the steps taken by the delegate of the Parliament by use of criteria, such as Wednesbury unreasonableness, which are concerned with the exercise of statutory discretion and administrative decision-making. The issue in the present context is whether the law made by the process of delegation is valid, not whether an administrative decision is reviewable for error.
In Tanner (supra) at 165, Wilson, Dawson, Toohey and Gaudron JJ said:
"In the course of argument, the parties accepted the reasonable proportionality test of validity (cf Deane J in Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1 at 260), namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. However, they differed in the answers to which their application of the test led. The same test, in relation to a power limited to regulation, was expressed by Dixon J in Williams [v City of Melbourne] (1933) 49 CLR 142 at 156, as being, in substance, whether the regulation goes beyond any restraint which could be reasonably adapted for the prescribed purpose."
Earlier, in Coulter v The Queen (supra), Mason CJ, Wilson and Brennan JJ had also treated Williams v City of Melbourne (1933) 49 CLR 142 as authoritative, asking whether the Rules of Court in question were "a reasonable means of attaining the ends of the rule-making power". See also Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 309-311, 327-329.
These observations in the High Court indicate that whatever may be the sweep of the proportionality principle in federal constitutional law, when the question of validity is concerned with delegated legislation made pursuant to a law of the Parliament whose validity itself is not impugned, the proportionality principle is differently focused. The observations by their Honours further suggest that here at least there has been no significant shift in doctrine and, indeed, that the subject still is controlled by what was said by Sir Owen Dixon over 50 years ago; see the discussion by Peter Bayne in his note "Reasonableness, Proportionality and Delegated Legislation" (1993) 67 ALJ 448 esp at 449-450. The fundamental question is whether the delegated legislation is within the scope of what the Parliament intended when enacting the statute which empowers the subordinate authority to make certain laws: see Austral Fisheries at 383-384, per Lockhart J.
The treatment by four members of the High Court in Tanner of the remarks of Dixon J in Williams as identifying what they understood by the proportionality criterion as applied to the validity of delegated legislation, brought with it, in my view, the subsequent elaboration by Dixon J of his views. In the joint judgment, to which Dixon CJ was a party, in Shanahan v Scott (1957) 96 CLR 245 at 250, the following was propounded. A power such as that in s 25(1) of the Act does not authorise the making of regulations which vary or depart from the positive provisions of the Act, or which go outside the field of operation which the Act marks out; such a power does not support attempts to widen the purposes of the Act, to add new and different means of carrying them into effect, or to depart from or vary the plan which the legislature has adopted to obtain its ends. These are indicia which assist in deciding the general question of whether the regulations in question are a reasonable means of attaining the ends of the legislative delegation of power.
Looked at in this way, I conclude that O 79 and O 80 do not fall outside power. The licensing system of which they are a part cannot be described as going beyond any restraint which could reasonably be adopted for the prescribed purpose.
159 In the same case, Cooper J also discussed the proportionality test as it applied to delegated legislation. His Honour expressly distinguished empowering provisions that were purposive, and those cast in non-purposive terms. He held that any subordinate legislation made under a purposive empowering provision had to be "reasonably proportionate". However, subordinate legislation made under a non-purposive empowering provision simply had to have a "real and substantial connection" with the subject matter of the grant of power.
160 Pearce provides a number of recent examples of the application of the "reasonable proportionality" test to strike down delegated legislation. They include: Re Gold Coast City Council By-laws [1994] 1 Qd R 130; Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314; and Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGERA 288. Interestingly, and perhaps more relevantly for present purposes, Pearce also refers to House v Forestry Tasmania (1995) 5 Tas R 169. There, the Tasmanian Full Court struck down, as disproportionate, a health and safety regulation that purported to impose absolute liability for certain conduct.
161 It may be accepted that these cases are very much the exception, rather than the rule. Most challenges based upon the reasonable proportionality test have failed. Nonetheless, each case must be decided upon its own particular facts, and as the High Court noted in Tanner, they often involve matters of impression.
162 In my opinion, the primary judge correctly held that cl 5(1)(k) did not meet the requirements of reasonable proportionality. The empowering provision under which the 2002 Determination was made seems to me to be properly characterised as "purposive". It was not designed as an end in itself, but rather to facilitate a process by which some certainty, and consistency, could be injected into the possible removal of ATSIC Commissioners. Although s 4A does not say so in terms, the power that it conferred upon the Minister was intended to enable certain acts to be characterised as "misbehaviour" without the need for them to be given individual consideration.
163 I agree with his Honour that the term "misbehaviour" is inherently vague, and lacks precision. Dictionary definitions are unhelpful, and say little, if anything, about how that term is to be understood in any particular situation. Examples of cases where "misbehaviour" has been established are generally unhelpful. In this area context is all-important. When an Act provides for the removal of a statutory office-holder on the ground of "misbehaviour", the meaning to be accorded to that term must be gleaned from its statutory context.
164 His Honour said that he gained some assistance from s 72(ii) of the Constitution in determining what might amount to "misbehaviour". Plainly, in that context, "misbehaviour" is not confined to conduct of a criminal nature. As virtually all commentators who have considered this matter agree, the conduct to which attention is directed must raise doubts about the suitability of a Chapter III judge to continue in office. In other words, the conduct in question must have the potential to undermine the standing of the courts, or destroy public confidence in the judge's ability to continue to perform his or her functions. See generally, the Parliamentary Commission of Inquiry Re the Honourable Mr Justice L K Murphy, Ruling on Meaning of Misbehaviour (19 August 1986), and the Parliamentary Judges Commission of Inquiry, First Report (Queensland, 1989).
165 It was in the light of observations by the various parliamentary commissions that his Honour identified the essential elements of "misbehaviour", in the context of suspension or termination of a ATSIC Commissioners. As his Honour said at [85]:
It is clear from these expressions of opinion that, in order to constitute misbehaviour by the holder of an office, the conduct concerned need not be criminal conduct and need not occur in the course of the performance of the duties of the office. For present purposes, the important proposition to be drawn from these expressions of opinion is that, in a case in which the term 'misbehaviour' is used with reference to the holder of an office, the content of its meaning is to be determined by reference to the effect of the conduct on the capacity of the person to continue to hold the office. In turn, the capacity to continue to hold an office has two aspects. The conduct of the person concerned might be such that it affects directly the person's ability to carry out the office. Alternatively, or in addition, it may affect the perceptions of others in relation to the office, so that any purported performance of the duties of the office will be perceived widely as corrupt, improper or inimical to the interests of the persons, or the organisation, for whose benefit the functions of the office are performed. In either case, the danger is that the office itself will be brought into disrepute as a result of the conduct of its holder. If that is likely to be the case, then the conduct is properly characterised as misbehaviour for the purposes of the relevant legislation.
166 This conclusion had two important consequences. The first was that the Minister was required to consider the nature of the office of ATSIC Commissioner, and the duties attached to that office, when she considered whether Mr Clark was guilty of "misbehaviour" in its general sense. That is a matter to which I shall shortly return. The second was that in exercising the power, pursuant to s 4A(1), to specify conduct that was taken to be misbehaviour for the purposes of the Act, the Minister was limited, not just by the meaning of "misbehaviour" in the Act itself, but also by the need to avoid a definition that was not reasonably proportionate.
167 As I have already observed, the primary judge found that cl 5(1)(k) was capable of operating arbitrarily or capriciously. As a first step towards that conclusion his Honour noted the enormous width of the clause. He observed that the word "offence" was not defined in the Act. He also observed that cl 5(1)(k) extended to include any offence that carried a term of imprisonment under the law of any State or Territory, and not just offences under Commonwealth law. As his Honour correctly noted, the Minister had plainly assumed that a conviction under State law was sufficient. She acted on that basis in finding that Mr Clark's conviction under the Summary Offences Act 1966 (Vic) amounted to misbehaviour.
168 His Honour next considered the laws of the various States and Territories in order to see what sorts of offences carried potential sentences of imprisonment. For that purpose, and sensibly, he focussed upon "public order" offences. He noted that in Victoria and Tasmania offences involving intoxication in public were punishable by imprisonment. He also considered "nuisance" offences, involving offensive behaviour or language, disorderly conduct, public nuisance or other disturbance of the peace, or loitering, all of which were punishable by imprisonment. He noted that in some jurisdictions, imprisonment was available for obstructing or resisting police. He observed that consorting remained an offence punishable by imprisonment in New South Wales and the Northern Territory. He also observed that consorting with thieves, prostitutes or vagrants was punishable by imprisonment in South Australia and Tasmania, and that begging remained an offence punishable by imprisonment in Tasmania and the Northern Territory.
169 His Honour drew two conclusions from his survey of the range of offences that carry imprisonment. The first was that it was possible for the same conduct to be an offence carrying a potential sentence of imprisonment in one State or Territory, but to be an offence punishable by fine only, or not an offence at all, in another State or Territory. There was therefore an element of chance, or arbitrariness, in the application of cl 5(1)(k) to ATSIC Commissioners. The second was that it was plainly possible for "quite trivial conduct" to be deemed misbehaviour under the 2002 Determination. Indeed, cl 5(5)(b) made it clear that even trivial offences were to be regarded as "misbehaviour", given that a finding of guilt, leading to a discharge without conviction, would still be sufficient to satisfy cl 5(1)(k). As his Honour observed at [108]:
In effect, whether a person is found guilty of misbehaviour for the purposes of cl 5(1)(k) might well depend upon the exercise of a discretion to prosecute in respect of conduct found by a court not to be sufficiently serious even to warrant a conviction. In this respect, it is capable of operating arbitrarily or capriciously.
170 The Minister challenged his Honour's reasoning on this issue. She contended that cl 5(1)(k), even when read in conjunction with cl 5(5)(b), had a "real, substantial and direct connection with the subject matter of the power to determine what is and is not misbehaviour". Her counsel referred to the judgment of Hill J in One.Tel Limited v Australian Communications Authority (2001) 110 FCR 125 at 144 in support of the contention that a "real, substantial and direct connection" was all that was required to establish validity.
171 For reasons already given, I reject that contention. Delegated legislation made pursuant to a purposive empowering provision will be invalid if it fails the test of reasonable proportionality. Admittedly this is a "stringent test". It will only be satisfied in "an extreme case": Austral Fisheries at 384 per Lockhart J, and at 401 per Beaumont and Hill JJ. I agree with the primary judge that the present case is just such a case.
172 It is unnecessary, for present purposes, to explore in detail the historical origins of the importation of the European concept of proportionality into English public law, still less its derivations in Australian public law. As previously indicated, Gummow J explored these matters in Dover Fisheries. See also Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410 per Lord Diplock, and Australian Broadcasting Tribunal v Bond (1990) 176 CLR 321 at 367 per Deane J. Aronson observes that Australian law has long acknowledged some room for a proportionality principle in relation to judicial review of subordinate legislation for being ultra vires, and the cases that are cited at 344 of that text make good that proposition. Indeed, a number of commentators argue that proportionality has greater explanatory force than the question-begging notion of unreasonableness, whilst cautioning against allowing too great acceptance of that ground as having the potential to lead into merits review. In Bruce v Cole (1998) 45 NSWLR 163 at 185 Spigelman CJ acknowledged the validity of the use of proportionality in constitutional law, and in challenges to subordinate legislation. However, he said that in the broader context of judicial review of administrative action, it was a concept "at the boundaries of accepted administrative law". In England, there is less reticence associated with the use of the concept. It is recognised that proportionality is concerned with the relationship between ends and means. An example sometimes given of a disproportionate act is that of using a sledgehammer to crack a nut. See generally Aronson at 345-8. See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 670 per Callinan J, and Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 23 per McHugh and Gummow JJ.
173 It is important to note that cl 5(1)(k) applies across the board to all offences which carry a penalty of imprisonment. Counsel for the Minister submitted that there was nothing untoward about treating a conviction for such an offence as a clear indication that the offender is unfit for office. Counsel proffered the example of s 44(ii) of the Constitution, which deals with disqualification of members of Parliament. In my view, the example does not assist the Minister's case. Quite the contrary. Disqualification under s 44(ii) applies only where a person "has been convicted and is under sentence, or subject to be sentenced for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer". The dual requirement that there be a conviction, and that it be for an offence punishable by imprisonment for one year or longer, makes it plain that disqualification, in the case of members of Parliament, can only occur in a much narrower range of cases than is provided for in cl 5(1)(k). In any event, whatever s 44(ii) may say, constitutional provisions do not have to pass a "reasonable proportionality" test.
174 The fact is that cl 5(1)(k) is drafted in extraordinarily broad terms. It is difficult to conceive of a broader definition of "misbehaviour", at least in the context of criminal offences leading to termination or suspension. Perhaps the notion of "an offence", undefined, would be wider, but no one could seriously suggest that this would satisfy a reasonable proportionality test.
175 The Minister submitted that the validity of cl 5(5)(b) did not strictly arise on the facts of the present appeal. Mr Clark was not discharged without a conviction being recorded. That is true, but it is no answer to a challenge to the validity of cl 5(1)(k) based upon its having the potential to operate arbitrarily or capriciously. The fact is that cl 5(1)(k) can be coupled with cl 5(5)(b) to expand the reach of "misbehaviour" into the realms of truly trivial misconduct.
176 Nor can cl 5(1)(k) be saved by being contrasted with s 40(7) of the Act, which sets out the matters that will lead automatically to the termination of an ATSIC Commissioner's appointment. These include conviction and imprisonment for at least one year, or, in the case of offences involving dishonesty, three months. However, that section plainly does not limit the concept of misbehaviour in s 40(1).
177 It may be accepted that the statutory scheme necessarily contemplated that misbehaviour under s 40(1) might be less reprehensible than the conduct covered by s 40(7). As the Minister correctly submitted, the offences in s 40(7) are of a serious nature. In such cases, the Minister has no discretion, but must terminate the appointment of the Commissioner. There is no "show cause" process, and there is no parliamentary supervision.
178 The fact that the discretionary power conferred by s 40(1) was left to deal with less serious matters, and that there are a range of additional processes and protections to prevent abuse or miscarriage of the discretionary power does not mean that the Minister is at large in defining misbehaviour under a determination. She is still obliged to ensure that any definition that she stipulates, though it may be broader than the ordinary meaning of "misbehaviour", as that term is understood in the context of the Act, meets the test of "reasonable proportionality".
179 The Minister contended that a finding of guilt in relation to an offence that carries any penalty of imprisonment must, ipso facto, be an appropriate basis upon which to consider suspension or termination. I am unable to accept that submission. She further contended that cl 5(1)(k), even when read with cl 5(5)(b), was "well within the power conferred by s.4A". She submitted that these clauses were "far removed from being so oppressive and capricious that no reasonable mind could justify [them]". I am not persuaded by that submission.
180 The concept of proportionality is central to any theory of punishment. It is a cardinal principle of sentencing that any penalty that is imposed must be proportionate to the gravity of the offence. For that reason, it is easier than it might otherwise have been to ask whether the possibility of suspension or termination by reason of guilt of a particular offence meets the test of "reasonable proportionality". To take an extreme example, one does not expect to see a statutory office-holder removed from office because of a parking offence.
181 One must be cautious about testing the validity of delegated legislation by considering extreme examples of its possible misuse. At the same time, it is legitimate to test whether a particular provision is reasonably proportionate by considering realistic examples of the use to which it might be put.
182 In my view, that is what the primary judge did when he considered the range of offences that carry potential terms of imprisonment throughout the Commonwealth, States and Territories. His Honour fairly described his analysis as a "brief survey" only. To his Honour's list of offences there can be added many others. Some of these offences can be committed without any significant moral obloquy. A number would have no conceivable bearing upon the fitness of an ATSIC Commissioner to continue in office.
183 I set out below some examples of public order and related offences that carry imprisonment, beyond those noted by the primary judge. These offences do not of themselves seem to me to provide any rational basis for considering the suspension or termination of a person entrusted with the responsibilities of an ATSIC Commissioner. That is not to say that they should be regarded as trivial. At least in their aggravated forms, some of them may be regarded as serious. The extended list is as follows:
Summary Offences Act 1966 (Vic)
· leaving a hole excavation or dangerous formation in or near a public place unguarded, or without having a warning light burning nearby, between sunset and sunrise - six months' imprisonment: s 7(b);
· posting any placard, bill, sticker or other document on, or writing or painting on, or otherwise defacing any road, bridge or footpath or any house, building, hoarding, wall, fence, gate, tree, tree-guard, post, pillar, hydrant, fire-alarm, petrol pump, or other structure whatsoever without consent - three months' imprisonment: s 10;
· singing an obscene song or ballad, writing or drawing any indecent or obscene word, figure or representation, or using profane or indecent language in or near a public place or within the view or hearing of any person being or passing therein or thereon - two months' imprisonment: s 17;
· suffering persons of notoriously bad character to frequent one's refreshment house - three months' imprisonment for a second or subsequent offence: s 20; and
· disturbing religious worship - three months' imprisonment: s 21.
Summary Offences Act 2005 (Qld)
· begging in a public place - six months' imprisonment: s 8;
· unlawfully leaving a gate open on farming land - six months' imprisonment: s 13(2); and
· possessing a graffiti instrument that is reasonably suspected of having been used, or about to be used, for graffiti - 12 months' imprisonment: s 17(1)(a).
Summary Offences Act 1953 (SA)
· using offensive language in a public place or police station - three months' imprisonment: s 7;
· interruption or disturbance of religious worship - two years' imprisonment: s 7A;
· habitually consorting with reputed thieves, known prostitutes or persons who have no lawful visible means of support - six months' imprisonment: s 13;
· failing to obey an order by a police officer to move on or disperse - three months' imprisonment: s 18;
· disorderly behaviour at a public meeting - three months' imprisonment: s 18A;
· posting a bill on property without lawful authority - six months' imprisonment: s 48; and
· throwing, setting fire to or exploding a firework or explosive material so as to injure, annoy or frighten, or be likely to injure, annoy or frighten, persons in any public place - six months' imprisonment: s 52.
Police Offences Act 1935 (Tas)
· habitually consorting with reputed thieves or known prostitutes or with persons who have been convicted of having insufficient lawful means of support - six months' imprisonment: s 6;
· cursing, swearing, singing an obscene song, using profane, indecent, obscene, offensive or blasphemous language in a public place, or within the hearing of any person in that place - three months' imprisonment: s 12;
· jostling, insulting, or annoying any person in a public place - three months' imprisonment: s 13(d);
· setting off a firework in a public place - three months' imprisonment: s 13(f);
· peeping or peering into the window or door of a dwelling-house, or lurking, loitering, or secreting on any land within the curtilage of a dwelling-house, without lawful excuse - six months' imprisonment: s 14A;
· placing or causing to be placed in or upon any public place, dump, tip, or unfenced land, any refrigerator, ice chest, ice box, hot box, chest, trunk, wardrobe or cupboard - six months' imprisonment: s 19AA; and
· entering or remaining on the playing area of a sports ground without lawful excuse - three months' imprisonment: s 19A.
Summary Offences Act (NT)
· disturbing religious worship - six months' imprisonment: s 46C;
· unreasonably disrupting the privacy of another person - six months' imprisonment: s 47;
· failing to obey a direction to cease to loiter in a public place - six months' imprisonment: s 47A;
· begging - three months' imprisonment: s 56; and
· possessing an article of disguise without lawful excuse - three months' imprisonment: s 56.
184 It is of some significance to note that New South Wales appears to have amended its public order legislation so as to remove the possibility of imprisonment for offences of this kind.
185 In truth, there are literally thousands of offences that carry possible terms of imprisonment throughout the Commonwealth, the States and the Territories. These are found in a host of statutes, ranging across almost all areas of human activity. They go beyond public order or nuisance offences. For example, under the Occupational Health and Safety Act 2004 (Vic) imprisonment is available as an option for breaches of ss 32, 76 and 125. Under s 24 of the Crimes Act 1958 (Vic), a person can be imprisoned for negligently doing or omitting to do an act that causes serious injury. Admittedly, the degree of negligence required will be greater than that necessary to establish civil liability, but the test is still wholly objective. Imprisonment is also available throughout all Australian States and Territories for various road traffic offences, some of them obviously of considerable gravity, but others falling well short of that description. At the Commonwealth level, putting to one side the various welfare and health insurance fraud offences, which all involve dishonesty, and tax, corporations and narcotics offences, which again may involve conduct of the utmost gravity, there are many other statutes that create offences for which imprisonment is an option. These include the Bankruptcy Act 1966 (Cth), the Civil Aviation Act 1988 (Cth), the Commonwealth Electoral Act 1918 (Cth), the Copyright Act 1968 (Cth), the Family Law Act 1975 (Cth), the Financial Transaction Reports Act (1988) (Cth), the Fisheries Management Act 1991 (Cth), the Migration Act 1958 (Cth), the Quarantine Act 1908 (Cth), the Radiocommunications Act 1992 (Cth), the Telecommunications (Interception) Act 1979 (Cth), the Trade Marks Act 1995 (Cth),and the Workplace Relations Act 1996 (Cth). The Commonwealth has its own "public order" offences as well, see the Public Order (Protection of Persons and Property) Act 1971 (Cth). It is important to note that even though imprisonment is available as a sentencing option under all of these statutes, some of the offences set out therein impose a reverse onus of proof on defendants.
186 Some offences that can still be prosecuted and are punishable by imprisonment would generally be regarded as archaic. On Norfolk Island, for example, the traditional offence of vagrancy still exists. A person can be imprisoned for being "idle and disorderly" or a "rogue and vagabond". The onus of proof rests upon the defendant to satisfy the court of his or her lawful means of support. In Victoria, although the offence of vagrancy has been abolished, offences such as "consorting" are still punishable by imprisonment under the Vagrancy Act 1966 (Vic). So too is being a "reputed cheat" who loiters "in or about any river, canal, navigable stream, dock or basin". Interestingly, s 19 of the Vagrancy Act bears a heading that indicates that offences of a serious nature are not to be dealt with under the Act.
187 As previously indicated, many offences that carry imprisonment do not have, as an essential element, a mental state that connotes moral obloquy. They are strict liability offences. In truth, the only "mens rea" that need be established in relation to these offences is negligence. Indeed, given that there is an evidential onus, at least, upon a defendant to establish an honest and reasonable mistake of fact in order to avoid conviction, not even negligence need be proved. The same is true of a number of offences where criminal liability is imposed vicariously.
188 It should not be thought that the principles of strict liability are rarely applied, and only involve regulatory offences. Until the High Court held otherwise in He Kaw Teh v The Queen (1985) 157 CLR 523, a number of drug offences under the Customs Act 1901 (Cth), including importation and possession of narcotics, were regarded as offences of strict liability. Needless to say, such offences carried the possibility of lengthy terms of imprisonment.
189 It should not be forgotten that, in England, it has even been held that an offence of "absolute liability" can result in a term of imprisonment: see R v Larsonneur (1933) 24 Cr App R 74.
190 When one adds to the many minor offences that still carry imprisonment in this country the fact that a finding of misbehaviour under the 2002 Determination must be made even where a case has been dismissed as trivial, and not warranting a conviction, the sheer scope of cl 5(1)(k) becomes apparent. Under the Crimes Act 1914 (Cth), s 19B provides that a court can discharge an offender against whom a charge is proved if it is of the opinion, inter alia, that the offence is of a trivial nature. Clause 5(1)(k) would nonetheless deem such an offence to be misbehaviour for the purpose of considering the suspension or termination of an ATSIC Commissioner. In other words, under cl 5(1)(k), even the most minor example of an offence that has been found by a court to be "of a trivial nature", and that was committed without any moral turpitude whatever, will amount to "misbehaviour".
191 It is not difficult to see why, in these circumstances, the primary judge concluded that cl 5(1)(k) did not meet the standards of reasonable proportionality. His Honour correctly asked himself whether, viewed through the prism of ATSIC's role under the Act, and its responsibilities towards indigenous people, suspension or termination could possibly be justified in such circumstances. He noted that ATSIC, while it existed, was unique among Australian statutory bodies. It was part of the executive arm of government but, at the same time, had a vital function in representing the views of indigenous people. It played an important role in policy formulation. It also took responsibility for the management of various government programs. It was, to a considerable degree, a body intended to be autonomous, and independent of government, while still being an arm of government. On that basis, Parliament could not have intended that Commissioners be removed for conduct that most sensible people would regard as relatively harmless. Yet, the 2002 Determination brought such conduct squarely into the ambit of misbehaviour. Accordingly, it empowered the Minister to consider suspension or termination.
192 There is no rational basis for embarking upon the process of considering suspension or termination in relation to conduct that cannot, on any sensible view, ultimately justify suspension or termination. The vice in cl 5(1)(k) lies in its failure to filter out, as a possible basis for the Minister's consideration, conduct that could not conceivably warrant suspension, still less termination. In that sense, cl 5(1)(k) is premised upon reasoning that is seriously flawed, almost to the same extent as reasoning containing a logical fallacy.
193 It is one thing to permit the Minister, by delegated legislation, to develop an expanded meaning of "misbehaviour". It is altogether another to permit the Minister to define "misbehaviour", in the context of considering suspension or termination, in a manner that is unreasonable and disproportionate, as well as arbitrary and capricious.
194 Had cl 5(1)(k) been more tightly drafted, it might have withstood his Honour's scrutiny, at least as regards unreasonableness. Many provisions allow for removal of office-holders upon conviction of a criminal offence. Normally, the offence must involve some aggravating feature, such as violence or dishonesty. Where no such aggravating feature, or characteristic, is stipulated, it is usually the case that the offence must carry a significant term of imprisonment. Typically, this will be twelve months or more. Analogous provisions can be found in the Migration Act 1958 (Cth), and in the Extradition Act 1988 (Cth). The primary judge could find no example of any provision that had the potential reach of cl 5(1)(k) in any other Act, or regulation. Interestingly, the Minister was unable to proffer any such example either. The absence of any provision of this type in other legislation is itself suggestive of a lack of proportionality.
195 That is not to say that I agree with everything that his Honour said regarding reasonable proportionality. His discussion of the findings of the Royal Commission into Aboriginal Deaths in Custody, and his analysis of the overrepresentation of indigenous people in the criminal justice system, at [91]-[99], was, with respect, of no direct relevance. That discussion was unnecessary to the conclusion that cl 5(1)(k) lacked reasonable proportionality. In that regard, I agree with the Minister's contention that such factors, no matter how powerful or clearly established they might be, do not bear upon the construction of s 4A(1), or cl 5(1)(k).