Yanner, in the matter of an application under the Torres Strait Islander Commission Act 1989 [2000] FCA 975

REGIONS AND ZONES 5 Division 1 of Pt 3 of the Act divides Australia (excluding the Torres Strait area) into thirty-five regions. A Regional Council is constituted for each region pursuant to Div 2 of Pt 3, and Div 4 of Pt 3 makes provision for election of the members of each such council. Part 3A provides for a Torres Strait Regional Authority. Pursuant to Div 7 of Pt 3, the various regions (other than the Torres Strait area) are grouped into sixteen zones. The Torres Strait area constitutes a zone known as the "Torres Strait zone". The members of the Regional Councils in each zone (other than the Torres Strait zone) elect one of their number to represent the zone. The Torres Strait Regional Authority elects one of its number to represent the Torres Strait zone. (See s 131.) APPOINTMENT OF COMMISSIONERS 6 Division 3 of Pt 2 constitutes ATSIC. Section 27 provides that ATSIC is to consist of nineteen members namely: (a) a chairperson; (b) seventeen members who are to be the persons elected under Div 7 of Pt 3 to represent the zones; and (c) one other member. 7 As I have said, the Minister must appoint the seventeen zone representatives as commissioners. The other two appointments are in his or her discretion. 8 Section 31 prescribes that: (1) A person is not qualified to be appointed as a Commissioner unless the person is an Aboriginal person or a Torres Strait Islander. (2) Subject to subsection (3), a person is not qualified to be appointed as a Commissioner if he or she: (a) has been convicted of an offence against a Commonwealth, State or Territory law and sentenced to imprisonment for one year or longer; or (b) has been convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced to imprisonment for 3 months or longer. (3) Subsection (2) does not disqualify a person from being appointed as a Commissioner if: (a) where the person was never actually imprisoned for the offence - at least 2 years have elapsed since the person was convicted; (b) where the person served a term of imprisonment for the offence - at least 2 years have elapsed since the person was released from prison; or (c) in any case - the Federal Court of Australia, on application by the person, declares that in spite of the person's conviction, he or she ought not to be disqualified from being appointed as a Commissioner. (4) The Federal Court of Australia has jurisdiction with respect to matters arising under subsection (3). 9 Similar provisions relating to disqualification as a result of conviction appear in s 102, which deals with qualification for election to Regional Councils, and in s 142V, which deals with qualification for election to the Torres Strait Regional Authority. The current application is made pursuant to par 31(3)(c).

THE SENTENCES 10 On 30 July 1999 the applicant was convicted in the District Court at Mt Isa on two counts of wilful damage and four of assault occasioning bodily harm, one of which was committed in company, a circumstance of aggravation under the Queensland Criminal Code. The offences occurred in May 1997. The learned District Court Judge ordered that the applicant be admitted to probation for a period of three years, that he perform 240 hours of community service and that he pay compensation totalling $2,500. The Attorney-General appealed, and on 10 December 1999 the Court of Appeal of the Supreme Court of Queensland upheld the appeal. The majority (McMurdo P and Thomas JA) were of the opinion that the orders for probation and community service should be set aside and that the applicant should, in lieu thereof, be sentenced to imprisonment for eighteen months, such period of imprisonment to be wholly suspended for a period of four years. Thus, on and after 10 December 1999, he was disqualified from appointment as a commissioner by virtue of par 31(2)(a) of the Act.

THE ELECTION 11 In October 1999 the applicant had been elected as a member of the Mt Isa Regional Council. On 14 December 1999 he was elected pursuant to s 131 as zone representative for the Queensland (Far North West) zone in which are located the Cooktown and Mt Isa regions. As I understand it, the applicant accepts that he is nonetheless disqualified from appointment as a commissioner and asks the Court to relieve him from such disqualification pursuant to par 31(3)(c). 12 The applicant's position as a member of the Mt Isa Regional Council as at 14 December 1999, and therefore his eligibility for election as zone representative on that date, must be in doubt. Section 122 of the Act provides: (1) Where the Commission is satisfied that a member of a Regional Council, since becoming, or last becoming, a member of the Regional Council: (a) has been convicted of an offence against a Commonwealth, State or Territory law and sentenced in respect of the offence to imprisonment for one year or longer; or (aa) …; … (h) …; the Commission shall, in writing, declare that it is so satisfied. (2) Where the Commission makes a declaration under subsection (1) about a member of a Regional Council, the member ceases to be a member of the Regional Council on the date of the declaration. 13 If the applicant's situation satisfied the criteria prescribed by par 122(1)(a), then ATSIC was, on and after 10 December, obliged to remove him from the Regional Council, thus disqualifying him from election as a zone representative. I am told that ATSIC has not so acted, apparently because it is thought that as his conviction preceded the election for the Regional Council, the sentence of imprisonment passed after that election (by virtue of the order of the Court of Appeal) did not enliven the operation of s 122. Although that is a possible interpretation of the section, it produces an odd result. I invited the parties to make submissions on this aspect. Each has adopted the interpretation mentioned above. I do not necessarily adopt that interpretation, but in the absence of any action by ATSIC, I proceed upon the basis that the applicant is, and was at all material times, a member of the Mt Isa Regional Council and therefore eligible for election as zone representative.

THE HEARING 14 The matter first came on for hearing on 10 February. The applicant and the Minister were both represented, although counsel for the Minister indicated that he proposed to play only a limited role in the proceedings. There was discussion as to appropriate parties, resulting in an order that notice be given to the members of the Mt Isa and Cooktown Regional Councils, the persons entitled to vote in the relevant zone election held on 14 December. The matter was adjourned to 30 March. Shortly before that date, I raised with the parties the question of the constitutional validity of par 31(3)(c) and subs 31(4) of the Act. On 30 March counsel again appeared for the applicant and for the Minister. There was no other appearance. I directed the applicant to give notice of the constitutional issue to the Attorneys-General of the Commonwealth, States and Territories. The Attorney-General for the Commonwealth elected to intervene but did not seek to remove the matter into the High Court. On 5 May the Attorney-General for the Commonwealth appeared by counsel, as did the applicant and the Minister. Each made submissions supporting the constitutional validity of those provisions. 15 In Re Loubie [1986] 1 Qd R 272 at 276-278, I concluded that as a Judge of the Supreme Court of Queensland, I should consider the constitutional validity of state legislation which appeared to discriminate against the residents of other states, notwithstanding the fact that the parties to the proceedings before me had not taken the point. This view was based upon two decisions of the Full Court, Commissioner of Taxes v Parks [1933] St R Qd 306 and Re Sweeney [1976] Qd R 296. For present purposes, I adopt the reasoning to be found in those cases and in my own reasons in Loubie. I note that in Hooper v Hooper (1955) 91 CLR 529, the High Court considered the constitutional validity of Commonwealth legislation in proceedings which had been removed into the High Court from the Supreme Court of New South Wales because a constitutional point had been raised by a Judge of the latter Court in the course of hearing an undefended divorce petition. The High Court considered that the question had "arisen" for the purposes of s 40A of the Judiciary Act 1903-1950 (Cth), and that the matter had been "automatically" removed into the High Court. In those circumstances, and in the absence of any application to remove the matter into the High Court, I consider that I am bound to address the constitutional issue. The parties did not submit that I ought not do so, although counsel for the Attorney submitted that if the matter could be resolved on some other basis, I should take that course rather than address the constitutional question. Whilst that may be an appropriate course in most cases, the issue presently in question is so closely associated with the process of identifying the nature of the discretion conferred by s 31(3)(c) and ascertaining the considerations relevant to its exercise, that it would be quite artificial so to proceed.

THE CONSTITUTIONAL PROVISIONS 16 The relevant provisions of the Constitution are as follows: 71 Judicial power and Courts The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. … 76 Additional original jurisdiction The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament; (iii) of Admiralty and maritime jurisdiction; (iv) relating to the same subject-matter claimed under the laws of different States. 77 Power to define jurisdiction With respect to any of the matters mentioned in the last two sections the Parliament may make laws: (i) defining the jurisdiction of any federal court other than the High Court; (ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States; (iii) investing any court of a State with federal jurisdiction. 17 The only arguable basis for the conferment of jurisdiction upon the Federal Court pursuant to s 31 of the Act is par 76(ii), namely "any matter … arising under any laws made by the Parliament".

THE CASES 18 The ambit of the "judicial power of the Commonwealth" and the meaning of the word "matter" in Ch III of the Constitution have been the subject of lengthy consideration on numerous occasions since Federation. For present purposes a good starting point is the following observation by Griffith CJ in Huddart, Parker & Co Proprietary Ltd v Moorehead (1908-1909) 8 CLR 330 at 357: Apart from these considerations, I am of opinion that the words "judicial power" as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. 19 In The State of South Australia v The State of Victoria (1911) 12 CLR 667, the Court was concerned with a boundary dispute between those two states. Section 75 of the Constitution confers jurisdiction in "all matters … between states …". For present purposes, it is sufficient to say that the boundary in question had been fixed by agreement between the respective state governors. The Court concluded that review of such an exercise of executive power was not "a cause of action capable of judicial decision ...". (per Griffith CJ at 706). At 674-675 Griffith CJ said (Barton and O'Connor JJ concurring): I assent to the argument that the jurisdiction of the High Court, if any, is judicial and not political. So far, therefore, as a controversy requires for its settlement the application of political as distinguished from judicial considerations, I think that it is not justiciable under the Constitution. The word "matters" was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice. Instances of such controversies which would clearly be justiciable are questions arising under mail contracts, contracts for the construction and maintenance of telegraph lines at joint expense, and running agreements over railways. In my opinion a matter between States, in order to be justiciable, must be such that a controversy of like nature could arise between individual persons, and must be such that it can be determined upon principles of law. This definition includes all controversies relating to the ownership of property or arising out of contracts. 20 Isaacs J concluded that boundary disputes between states were capable of being justiciable "matters" and continued at 721: As a competent forum for inter-State controversies (the High Court's) status is complete; and the lex fori must be either direct Imperial legislation or Colonial legislation authorized by some Imperial enactment. If on examination of the case it be found that the claim is not supported by any law binding the defendants, but is dependent on political considerations merely, the Court must say so. It has jurisdiction to entertain the suit, but in the course of its exercise it may be compelled to adjudge adversely to the plaintiffs on the ground that no paramount law can be found to support their claim. An instance of such a case is found in Shekh Sultan Sani v. Sheikh Ajmodin [20 L.R. Ind. App., 50, at p. 68.]. A suit was brought in an Indian Court to declare the rights of the plaintiff to (an assignment of lands) and (another kind of grant). The decision was against him. The Privy Council ultimately held in these terms: - "Their Lordships are of opinion that the question … is one which belongs exclusively to the Government to be determined upon political considerations, and that it is not within the competency of any legal tribunal to review the decision which the Government has pronounced." But the Court has always jurisdiction to determine in the first place whether the standard is political or legal. 21 At 742 Higgins J said: Under the Constitution, it is our duty to give relief as between States in cases where, if the facts had occurred as between private persons, we could give relief on principles of law; but not otherwise. 22 I understand this decision to exclude from the judicial power of the Commonwealth and from the meaning of the word "matter" in s 75 (and, it follows, ss 76 and 77) any dispute, the resolution of which requires the Court to take account of "political", as opposed to "judicial" considerations. Put another way, a justiciable matter is one which can be resolved by reference to matters of fact, legislation and legal principle. 23 In Re The Judiciary and Navigation Acts (1921) 29 CLR 257 concerned an attempt by the Commonwealth Parliament to confer upon the High Court jurisdiction to "hear and determine" any question referred to it by the Governor-General as to the validity of any enactment, such determination to be "final and conclusive and not subject to any appeal". The majority (Knox CJ, Gavan, Duffy, Powers, Rich and Starke JJ) said at 265-7: Section 51(xxxix) does not extend the power to confer original jurisdiction on the High Court contained in section 76. It enables Parliament to provide for the effective exercise by the Legislature, the Executive and the Judiciary, of the powers conferred by the Constitution on those bodies respectively, but does not enable it to extend the ambit of any such power. It is said that here is a matter arising under the Constitution or involving its interpretation, and that Parliament by section 30 of the Judiciary Act has conferred on this Court original jurisdiction in all matters arising under the Constitution or involving its interpretation. It is true that the answer to the question submitted for our determination does involve the interpretation of the Constitution, but is there a matter within the meaning of section 76? We think not. It was suggested in argument that "matter" meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which the Court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention; we do not think that the word "matter" in section 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. The word "matter" is used several times in chapter 3 of the Constitution (secs 73, 74, 75, 76, 77), and always, we think with the same meaning. … 24 Their Honours referred to the various judgments in State of South Australia v State of Victoria and continued at 266-7: All these opinions indicate that a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law. The adjudication of the Court may be sought in proceedings inter-parties or ex parte, or, if Courts had the requisite jurisdiction, even in those administrative proceedings with reference to the custody, residence and management of the affairs of infants or lunatics. But we can find nothing in Chapter iii. of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved. 25 As I understand it, this case establishes that a mere statutory right to apply to the Court for an order is not a "matter" for the purposes of Ch III. The application must concern some pre-existing right or duty. In later cases, it has been pointed out that as a matter of drafting practice, Parliament may create a right or duty in one provision and provide for its enforcement in another, or perform both functions in the same legislative provision. In either case, there will be a justiciable matter for the purposes of Ch III. However mere prescription of a judicial process will not necessarily create such a matter. It is necessary that upon the proper construction of the provision, there be a matter for resolution quite apart from any provision for judicial proceedings. See, for example, The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, at 154-6 (per Latham CJ) and at 166-8 (per Dixon J). 26 In The Queen v Davison (1954) 90 CLR 353, the High Court considered the conferment of jurisdiction in bankruptcy upon a deputy registrar of the Bankruptcy Court and in the course of so doing, considered the nature of that jurisdiction. At 366-7 Dixon CJ and McTiernan J quoted with apparent approval the following passage from the judgment of the Privy Council in Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134 at 149: Without attempting to give a comprehensive definition of judicial power, (their Lordships) accept the view that its broad features are accurately stated in that part of the judgment of Griffith C.J. in Huddart, Parker & Co. Proprietary Ltd v. Moorehead (quoted above) which was approved by this Board in Shell Co of Australia, Ltd. v Federal Commissioner of Taxation ([1931] A.C. 275). Nor do they doubt, as was pointed out in the latter case, that there are many positive features which are essential to the existence of judicial power, yet by themselves are not conclusive of it, or that any combination of such features will fail to establish a judicial power if, as is a common characteristic of so-called administrative tribunals, the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also. 27 At 367-8 their Honours identified from the various cases, three considerations said to have been "emphasized" as relevant to the characterization of the judicial function. They were: · existence of a controversy between subjects or between the Crown and a subject; · determination of existing rights as distinguished from the creation of new rights; · adjudication, submission by parties to adjudication and enforcement of the judgment. 28 Their Honours then continued at 368: It may be said of each of these various elements that it is entirely lacking from many proceedings falling within the jurisdiction of various courts of justice in English law. 29 Their Honours then referred to administration of assets or trusts in the Court of Chancery, maintenance and guardianship of infants, the exercise of a power of sale by way of family arrangement and consent to the marriage of a ward of court. Their Honours also referred to declarations as to legitimacy, winding-up of companies, grants of probate and letters of administration. Their Honours then continued at 368-9: But to say that a thing may be done in the course of the exercise of judicial power is not to say that it may not be done without the exercise of judicial power. The legislature may commit some functions to courts falling within Chapter III although much the same function might be performed administratively. In the judgment of this Court in Queen Victoria Memorial Hospital v. Thornton [(1953) 87 C.L.R. 144] the observation occurs:- "Many functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator. But that is because they are not independent functions but form incidents in the exercise of strictly judicial powers". It is this double aspect which some acts or functions may bear that makes it so difficult to define the judicial power. 30 At 369-70 their Honours continued: The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss. 71 and 72 of the Constitution and this may be true also of some duties or powers hitherto invariably discharged by courts under our system of jurisprudence but not exactly of the foregoing description. But there are many functions or duties that are not necessarily of a judicial character but may be performed judicially, whether because they are incidental to the exercise of judicial power or because they are proper subjects of its exercise. How a particular act or thing of this kind is treated by legislation may determine its character. If the legislature prescribes a judicial process, it may mean that an exercise of the judicial power is indispensable. It is at that point that the character of the proceeding or of the thing to be done becomes all important. Where the difficulty is to distinguish between a legislative and a judicial proceeding, the end accomplished may be decisive. This was the point made by Holmes J in Prentis v. Atlantic Coast Line Co [(1908) 211 U.S. 210]: "A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power … And it does not matter what inquires may have been made as a preliminary to the legislative act. Most legislation is preceded by hearings and investigations. But the effect of the inquiry, and of the decision upon it is determined by the nature of the act to which the inquiry and decision lead up … The nature of the final act determines the nature of the previous inquiry. As the judge is bound to declare the law he must know or discover the facts that establish the law. So when the final act is legislative the decision which induces it cannot be judicial in the practical sense, although the questions considered might be the same that would arise in the trial of a case". Though the purpose to which this test was put by Holmes J was to distinguish a judicial from a legislative function it may usefully be applied by analogy to ascertain whether a thing is done administratively or as an exercise of judicial power. 31 At 381-2 Kitto J said: It may accordingly be said that when the Constitution of the Commonwealth prescribes as a safeguard of individual liberty a distribution of the functions of government amongst separate bodies, and does so by requiring a distinction to be maintained between powers described as legislative, executive and judicial, it is using terms which refer, not to fundamental functional differences between powers, but to distinctions generally accepted at the time when the Constitution was framed between classes of powers requiring different "skills and professional habits" in the authorities entrusted with their exercise. For this reason it seems to me that where the Parliament makes a general law which needs specified action to be taken to bring about its application in particular cases, and the question arises whether the Constitution requires that the power to take that action shall be committed to the judiciary to the exclusion of the executive, or to the executive to the exclusion of the judiciary, the answer may often be found by considering how similar or comparable powers were in fact treated in this country at the time when the Constitution was prepared. Where the action to be taken is of a kind which had come by 1900 to be so consistently regarded as peculiarly appropriate for judicial performance that it then occupied an acknowledged place in the structure of the judicial system, the conclusion, it seems to me, is inevitable that the power to take that action is within the concept of judicial power as the framers of the Constitution must be taken to have understood it. 32 I understand this case to establish the following propositions. · That the identifiable characteristics of the exercise of the judicial power may also be found in the exercises of executive or legislative power. · Nevertheless, some functions are traditionally and indisputably part of the judicial function so that they must be within the judicial power of the Commonwealth. Some such functions may not show all of the common characteristics of the judicial process. · Argument by analogy is permissible in determining whether a particular function is part of the judicial power. · Some functions, not necessarily judicial, will become part of the judicial power if conferred upon a court. Such conferment will limit the processes by which the matters in question may be resolved to those appropriate to the exercise of that power. · Other functions, not essentially judicial in nature, may be within the judicial power because they are incidental to the exercise of such power. · It is the final act which is determinative of the nature of the process. The judicial function involves the determination of existing rights by reference to existing facts and law. The legislative function is to change the existing situation. 33 The next case in the series is The Queen v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 (hereinafter referred to as "Spicer (BLF)"). Before considering that case it is necessary to refer to two earlier cases which were apparently approved by the majority in that case. The first is Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia (1925) 36 CLR 442 which concerned a power to de-register an industrial organization and whether such power was part of the judicial power of the Commonwealth. At 453-4, Isaacs J said: The creation and equipment of representative organizations both of employers and employees is an incident to the power in sec. 51(xxxv.) of the Constitution. They are instruments for the more effective exercise of the power … . Parliament may adopt them as part of its mechanism. That mechanism can be made and unmade at the will of Parliament. It may be moulded, re-fashioned, or abolished in any manner indicated. The step of establishing an organization may be retraced at any point and, for any reason declared by the Act, by any officer in whom Parliament places confidence for the purpose and to whom it gives the necessary discretion. The function created by sec. 60 is not judicial in the constitutional sense. 34 This view was shared by Knox CJ at (448) and Rich J (461). At 463, Starke J said: The provisions of the Arbitration Act permitting the registration and incorporation of organizations under the Act have been upheld in this Court as a valid exercise of the power conferred by sec. 51, pl. xxxv. and pl. xxxix., of the Constitution… . But if the Parliament has authority under the arbitrationpower to permit the registration and incorporation of organizations, then that power necessarily extends to the control and regulation of those organizations, and to the cancellation or suspension of the registration or incorporation in such manner and by such means as Parliament provides. Provisions to that end are in no sense an exercise of the judicial power of the Commonwealth, … . 35 The High Court approved this decision in the second case, Consolidated Press Ltd v Australian Journalists' Association (1947) 73 CLR 549, (per Latham CJ and McTiernan J at 559-560 and per Starke J at 563). In the latter case, the Court held that a power to de-register an industrial organization because of the content of its rules, or to disallow such rules was not an exercise of the judicial power of the Commonwealth. These cases seem to suggest that it is no part of the judicial power to determine questions concerning the structure of bodies set up by legislation to carry out functions in respect of which the Parliament is authorized to legislate. Such an abdication of judicial authority in connection with statutory bodies appears, at this stage in our constitutional development, to be surprising. It appears to have received little support in subsequent cases. 36 In Spicer (BLF), the Court considered a provision contained in the Conciliation and Arbitration Act 1904-1956 (Cth) authorizing the Commonwealth Industrial Court, upon its own motion or upon application, to disallow any rule of an industrial organization which in its opinion (a) was contrary to law or to an order or award; (b) was tyrannical or oppressive; (c) prevented or hindered members of the organization from observing the law or the provisions of an order or award; or (d) imposed unreasonable conditions upon membership or application for membership. (The identifying letters reflect those used in the relevant paragraphs in the Act and are used in the judgments.) Upon disallowance such a rule would be void. There was also power to direct the organization to alter the offending rule. The Court considered that the relevant provision was, in all material respects, similar to that which the Court had struck down in Consolidated Press. I will set out extensive extracts from the judgments because I consider the case to be very similar to that with which I am presently concerned. 37 At 289-90 Dixon CJ said: … the draftsman … has not approached his task as if he were giving jurisdiction over a "matter" in accordance with s. 76(ii.) of the Constitution. Provided the necessary existence of a "matter" can be extracted from the nature of the power or authority given or from the terms in which it is given or from the implications, that might not be fatal. … the criteria set by pars. (b), (c) and (d) are vague and general and give much more the impression of an attempt to afford some guidance in the exercise of what one may call an industrial discretion than to provide a legal standard governing a judicial decision. Parenthetically, it may be remarked that the meaning is by no means self-evident of the expression "impose unreasonable conditions upon the membership of any member". 38 At 291 his Honour continued: This does not mean that I regard the question whether rules of an organisation should be quashed as necessarily outside the judicial power of the Commonwealth. On the contrary, in my opinion there is no reason why, if by or under statute the rules of an organisation must conform with certain tests or standards of justice, fairness or propriety, jurisdiction to quash the rules might not be conferred upon a federal judicial court by an enactment framed in some form appropriate to s. 76(ii.) of the Constitution. Nor does it seem to me that the existence of a discretion necessarily takes such a jurisdiction outside judicial power. Of course it must not be an arbitrary discretion; it must be a judicial discretion proceeding upon grounds that are defined or definable, ascertained or ascertainable, and governed accordingly. 39 At 291-3, McTiernan J said: The question for decision is whether the function defined by s. 140 of the Conciliation and Arbitration Act 1904-1956 is a part of the judicial power of the Commonwealth. The nature of the function is reform and annulment of a rule of "an organisation" defective according to the standards laid down in the section. … The creation of the organisation is not an end in itself; simply a means of administering the Act and pursuing its objects. (His Honour referred to the decision of Isaacs J in the Seamen's Union case.) It would appear that the function of reforming and annulling a rule of a public agency of this kind is peculiarly once for executive action. "Very special and important rights" said Griffith C.J., "are conferred by the Act on a duly registered organization and its members, rights which are not merely rights inter se but against the public" … . … The section says that the court may disallow any rule of an organisation either on the court's own motion or on an application by a member. The power arises if the court is of the opinion that any rule falls within s. 140(1)(a) or (b) or (c) or (d). What is the proper meaning and application of each of these clauses is to be ascertained by canons of legal interpretation. But where the court entertains such opinion the section does not immediately invalidate the subject rule. The function of disallowance consists in a discretionary authority to disallow any rule which is within any of the enumerated descriptions. The court may disallow the rule at once, if its opinion is adverse to the rule. Or, instead of summarily disallowing the rule, the court may direct the organisation to alter it, within a specified time, "so as to bring it into conformity with the requirements of the Act". The court may disallow the rule if its direction is not carried out. There is no avoidance of the rule until the court has ordered that the rule be disallowed. In short, there is involved in s. 140 the power to decide, according to criteria therein enumerated, whether a rule of an organisation is within the purview of the section, and, if it is, a discretionary authority to disallow the rule forthwith or upon failure to comply with the direction authorised by the section. The power to decide the initial question is consistent with judicial action but not inconsistent with executive action. The function consisting in the discretionary authority is essentially an operation of improving an administrative instrument and for this reason the exercise of the authority may involve weighing considerations of policy. It follows that the function is not in itself judicial. An order of disallowance under s. 140 could not be tested by legal principles. It would be really a judicial order. 40 At 294, his Honour continued: It is possible that a power which is fit for executive or administrative action may be consistent with judicial action and if put in the hands of a court of law could properly be part of its jurisdiction as such. … But the difficulty of sustaining the section in this way is that … the power now in question is peculiarly a function for administrative action. … The subject of the power is such that it belongs irrevocably to the administrative sphere. 41 At 304-6, Kitto J said: It is true, no doubt, that a power to disallow a rule of an organization has a degree of resemblance to some other powers which have been given to courts in the past, and that there is nothing necessarily foreign to the nature of judicial power in the fact that its exercise is conditional upon the formation of an opinion described in broad terms. It is true also that sometimes a grant of power not insusceptible of a judicial exercise is to be understood as a grant of judicial power because the recipient of the grant is judicial. But it by no means follows that whenever a power which has some similarity to an acknowledged judicial power is given to a judicial person or body there is a grant of judicial power. The reason for concluding in some such cases that the judicial character of the repository imparts a judicial character to the power is simply that the former provides a ground for an inference, which in those cases there is nothing or not enough in other considerations to preclude, that the power is intended and required to be exercised in accordance with the methods and with a strict adherence to the standards which characterise judicial activities. That is not a necessary inference, however, in every case of this kind. The authorised act itself, though not inherently incapable of judicial performance, may be by nature more appropriate for administrative performance. The possible effects of the act when done upon persons, situations and events may be such as to suggest the probability that decisions to exercise or to refrain from exercising the power were intended to be made upon considerations of general policy and expediency alien to the judicial method. The circumstances in which the power is to be exercisable may be prescribed in terms lending themselves more to administrative than to judicial application. The context in which the provision creating the power is found may tend against a conclusion that a strictly judicial approach is intended. And there may be other considerations of a similar tendency. The problem in such a case ought therefore to be recognised as one of statutory construction, the task being to decide whether or not the provision should be understood as intending that in discharging the responsibility which possession of the power entails the person or body entrusted with it is to act strictly as a judge. The fact that the person occupies a judicial office, or that the body is or is not a judicial tribunal is only one matter to be considered. There may be many others. Section 140 seems to me an example of a provision which, though it empowers a court to do an act - the disallowing of a rule - which is not insusceptible of a judicial performance, nevertheless is found to mean, on a clear preponderance of considerations, that the function for which it provides is to be performed as an administrative function, with a more elastic technique, and more of an eye to consequences and industrial policy generally, than could properly be expected of a court. The authority given is to act in pursuance of an opinion, formed either spontaneously or upon representations made by a person who may or may not be affected by the rule in question. The kinds of rules which may be disallowed are described as possessing any of several qualities which are indicated in terms so broad as to be more appropriate for conveying general conceptions to a person engaged administratively in performing a function conceived of as part of a system of industrial regulation than for stating, to a body acting judicially, grounds of jurisdiction which it is to interpret and apply with precision. … Moreover - and this is the most important consideration of all - s. 140 belongs to a group of provisions, comprising all those which deal with the registration and regulation of industrial organisations, which as a group are characterised by the purpose of facilitating the prevention and settlement of inter-State industrial disputes by conciliation and arbitration under the Act. It is difficult to think that s. 140 intends a consideration of an organisation's rules to be undertaken otherwise than with a view to the improvement of the organisation as an instrument for the representation of employees in everything connected with the maintenance and restoration of industrial harmony. To read the section as creating a jurisdiction to apply fixed standards to particular situations, and to make decrees with a judicial disregard of consequences, would be plainly incongruous with the scheme of the Act and the terms of the section. In particular, it seems to me to be required, as a matter of practical good sense, that in forming an opinion as to whether a rule of an organisation is "tyrannical" or "oppressive", or imposes "unreasonable" conditions upon the membership of a member or upon an applicant for membership, the repository of the power should look to the effect which the existence or non-existence of the rule will be likely to have upon the working of the machinery of conciliation and arbitration under the Act; and this points unmistakably to an intention that the performance of the function provided for by the section is to be approached in a manner incompatible with the restraints peculiar to judicial power. 42 Although Taylor J referred to the Shipping Board case with apparent approval, his Honour appears to have disposed of this matter upon a basis similar to that adopted by Dixon CJ and Kitto J. (See pp 309-310.) The case establishes the following propositions: · that the legislation confers jurisdiction concerning a relevant matter will be a question of construction in each case; · that some discretions are inevitably more appropriate to exercise by the executive than to exercise by the judiciary; · that the exercise of a discretion involves the comparison of relevant circumstances with prescribed standards and otherwise depends upon ascertained or ascertainable considerations, the function may be judicial; · that the rules and structures of organizations established by the Parliament to facilitate the exercise of powers in respect of which it is authorized to legislate are peculiarly appropriate to the legislative or executive function, rather than to the judicial functions; but nonetheless, Parliament may properly confer jurisdiction to assess the validity of such rules against "ascertained or ascertainable" criteria; and · that conferment upon a court of a power, "not insusceptible of a judicial exercise", may imply an intention that the power is to be exercised "in accordance with the methods and with a strict adherence to the standards which characterize judicial activity", whether this is so in a particular case will depend upon the construction of the statute in question. 43 By way of footnote I should say that in some of the later cases, Spicer (BLF) was distinguished upon the basis that the legislation in question had permitted the relevant court to proceed on its own motion. Although that was certainly a factor leading to invalidity, it was by no means the critical one. 44 Shortly thereafter, the Court delivered its judgment in The Queen v Spicer; Ex parte Waterside Workers' Federation of Australia (1957) 100 CLR 312, (hereinafter referred to as "Spicer (WWF)"). The case concerned the purported conferment upon the Commonwealth Industrial Court of power to entertain appeals from decisions of the Australian Stevedoring Industry Authority, cancelling or suspending the registration of waterside workers. The High Court held that the power was non-judicial and therefore impermissibly conferred. The majority observed at 317: The validity of s. 37 depends upon its real nature and meaning. If it is to be interpreted as conferring upon the Commonwealth Industrial Court jurisdiction to hear and determine a matter arising under a law made by the Parliament of the Commonwealth within the meaning of s. 76(ii.) of the Constitution, then there is nothing to be said against its constitutional validity. A matter of that description involves a claim of right depending on the ascertainment of facts and the application to the facts of some legal criterion provided by the legislature … . The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards. An analysis of s. 37(1) considered independently of the sections which precede it in the Stevedoring Industry Act 1956 shows that in reality it does nothing but say that a person whose registration as a waterside worker has been cancelled or suspended may within a limited time appeal to the Commonwealth Industrial Court and that that court may confirm, vary or set aside the cancellation or suspension. 45 At 319, their Honours continued: If s. 37 had been framed in such a way as to invest the Commonwealth Industrial Court with power to hear and determine issues defined with more or less precision as to the infringement by waterside workers of prescribed standards of conduct or as to the fulfilment of other definite conditions upon which the cancellation or suspension of registration was to depend, there might have been little difficulty in treating the duty or authority thus imposed or conferred upon the court as part of the judicial power of the Commonwealth. And if a discretion had been added to remove or reduce the suspension or cancellation if the real merits appeared so to require, notwithstanding that an infringement had occurred, that would not necessarily have been inconsistent with a grant of judicial power. 46 At 321, their Honours continued: The argument in support of the validity of s. 37 was simply that once the power was conferred on a court established for the exercise of the judicial power of the Commonwealth the provision should be restrained by construction to the limits required for the exercise of jurisdiction falling within the judicial power of the Commonwealth. For this argument much might be said were it not for the history of the provisions and were there not so much evidence of the fact that the true intent of the legislation is that the exercise of power arising under s. 37, wherever it might reside, should be governed by what might broadly be called administrative and industrial considerations and should not be restricted to purely legal criteria. 47 This case also has a marked similarity to that presently under consideration. Determination of an appeal upon unspecified grounds may be compared with the discretion to relieve from disqualification upon unspecified grounds. It also highlights the limitation upon the proposition that conferment of jurisdiction upon a court should be seen as dictating a construction of the legislation in question so as to exclude from the exercise of that jurisdiction, consideration of any matter inappropriate to the judicial process. 48 In The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1969-1970) 123 CLR 361, the relevant legislation conferred power upon the Trade Practices Tribunal, if satisfied that "an examinable agreement" or "examinable practice" existed, to determine whether the agreement or practice was contrary to the public interest. The Act provided that the basis for such a determination should be the principle that the preservation and encouragement of competition was desirable. It also set out a number of other factors which could be taken into account by the Tribunal. Such a determination would render the agreement unenforceable. Thus the Act required two decisions, one as to "examinability" and the other as to the public interest. 49 At 374-5, Kitto J said: Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its conclusion in the category of judicial power is to be justified. The powers of the Tribunal do not present any such feature, and they are not directed to any determination or order which resolves an actual or potential controversy as to existing rights or obligations. … The inquiry is not into the validity of the agreement or the legality of the practice, … . Even in relation to an agreement, the question is not whether it is contrary to public policy in the sense in which the term is used in the common law … . The determination does not resolve any question as between opposed interests. It merely records whether the Tribunal has satisfied itself, first, that an agreement or practice has the characteristics which the Act comprehends in the word "examinable", and, secondly, that the restriction or practice, if examinable, is contrary to the public interest. Such determinations as these are quite often to be made in the exercise of administrative power. 50 At 376-7, his Honour continued: A determination that an agreement or a practice is examinable therefore has, in my opinion, no point of contact with the concept of judicial action unless it derives from the nature of the power to which it is preliminary. But the power which the Tribunal may exercise if satisfied on the preliminary point is to determine, "in accordance with its opinion", a question that is essentially non-justiciable. I so describe it for the reason that it does not depend upon the application of any ascertainable criterion. The Act requires the Tribunal in considering the question of the public interest to make a basic assumption and to take certain matters into consideration …, but the question upon which it has to pronounce is not as to whether the relevant restriction or practice satisfies an ascertained standard but as to whether it satisfies a description the context of which has no fixity - a description which refers the Tribunal ultimately to its own idiosyncratic conceptions and modes of thought. In words which I take from the joint judgment in Reg. v. Spicer; Ex parte Waterside Workers' Federation of Australia …, it may be said that here there is no "claim of right depending on the ascertainment of facts and the application to the facts of some legal criterion provided by the legislature". … Similarly, to confer a power of discretionary judgment as to whether a restriction or practice has a specified quality may be to confer judicial power, but only if the quality is so described that its existence is to be judged by applying an objective test or standard supplied by the legislature. When the Tribunal, in conformity with s. 49(1)(b), "determines, in accordance with its opinion, whether the relevant restrictions to which the proceedings relate are contrary to the public interest" it necessarily supplies for itself its own subjective criterion for deciding, as a matter of individual opinion, though on the assumption required by s. 50(1) and taking into account all the matters specified in the Act, where the public interest appears to it to lie in the circumstances in which the restrictions or practice operate. Thus the work of the Tribunal is work which would be appropriate for the legislature itself to do if it had the time to consider individual cases. 51 At 378, his Honour continued: The effect given by the Act to a determination under s. 49 that a restriction or practice is contrary to the public interest is to render unenforceable for the future an agreement under which the restriction is accepted or the practice is provided for …, and to enable the Tribunal to make such orders as it thinks proper for restraining future conduct which falls within certain descriptions … . The determination itself has no operative effect: it constitutes the factum by reference to which the Act operates to alter the law in relation to the particular case. … It presents a direct contrast with an injunction granted by a court as a means of enforcing obligations that have been established by adjudication. The order restrains future conduct, not as being in breach of ascertained obligations, but as being in conformity with ascertained obligations or practices - not in order to ensure observance of them but to prevent observance of them, because it is considered that their observance would be against the public interest. The Act … operates upon the order to give its provisions the force of law, and thus to alter the law for the future in relation to the particular case. For these reasons the powers of the Tribunal seem to me to be of a nature foreign to the concept of judicial power. 52 At 399-400, Windeyer J said: Proceeding from the preliminary inquiry to the next stage - the adjudication of whether a matter is "contrary to the public interest" - that phrase seems to me to embody considerations much further removed from traditional judicial concepts than those which the words "just and equitable" express when applied in a controversy between parties. The public interest is a concept which attracts indefinite considerations of policy that are more appropriate to law-making than to adjudication according to existing law. The Act directs the Tribunal as to matters it is to "take into account" in considering what the public interest requires. The generality of these matters prevents their providing objectively determinable criteria. In the result the jurisdiction of the Tribunal to make determinations and orders depending upon its view of where the public interests lies and what the public interest requires seems to be an exercise of a legislative or administrative function of government rather than of the judicial power. 53 These passages demonstrate that: · a function which does not involve the resolution of a dispute inter parties, upon existing facts and according to existing law, will be part of the judicial power only if it possesses "some special compelling feature"; · determination of a preliminary question going to jurisdiction is not sufficient to constitute the making of a subsequent decision part of the judicial power; and · a decision based upon opinion will be an exercise of the judicial power only if the legislation provides objective standards. 54 The express guidelines for decision-making in the Tasmanian Breweries case (which were held to be inappropriate for judicial exercise) may be contrasted with the complete absence of any express guidelines in the present case. If the conferment of jurisdiction presently under consideration is valid, it can only be because sufficient guidelines as to the exercise of the discretion are implied by the terms of the Act. 55 In Conimos v Conimos (1972) 127 CLR 588, the High Court considered a challenge to the validity of a provision of the Matrimonial Causes Act 1959-1966 (Cth) which invested the state Supreme Courts with jurisdiction in matrimonial causes, including ancillary proceedings for orders as to maintenance and property settlement. It was submitted that these latter matters were not properly part of the judicial power of the Commonwealth. McTiernan and Menzies JJ said at 591: In our opinion, the challenge fails because it is a recognized part of judicial power to make orders of the sort authorized by the sections in question in the exercise of judicial power to hear and to determine matrimonial causes. The powers conferred by the sections are ancillary to, and take their colour from, the valid grant of jurisdiction to hear and determine matrimonial causes. 56 Walsh J said at 593-4: Those provisions [as to maintenance and property settlement] are to be construed and applied as provisions conferring powers in aid of the exercise of the jurisdiction to hear and determine proceedings for divorce and other forms of substantive matrimonial relief. That being so, it is impossible to maintain that the discretion conferred upon the court is not a judicial discretion or that it is not governed or bounded by any ascertainable test or standard, but is entirely arbitrary in its nature. 57 Gibbs J said at 599-600: The power is thus one that is exercised as an incident to judicial proceedings, it is committed to a court and a judicial process is prescribed for its exercise. It can hardly be doubted that such a power is itself judicial … . It is true that in determining an application under s. 86 the court, after deciding such questions of fact and law as have arisen, is called upon to make a discretionary judgment. The discretion, although wide, must, …, "be exercised according to accepted principle, for what is just and equitable in this jurisdiction is not a matter of unfettered individual opinion". It is not a discretion of an arbitrary kind. The standard imported by the familiar words "just and equitable" is "by no means foreign to the judicial function" … nor is it "so indefinite as to be insusceptible of strictly judicial application" … . It is also true that s. 86 enables the court to create new rights and impose new duties and not merely to enforce legal right (sic) already existing, but the fact that a court is authorized to create or alter rights and not merely to declare and give effect to pre-existing rights does not necessarily show that the powers conferred are not judicial powers … . Stephen and Mason JJ, in separate judgments, came to similar conclusions for similar reasons. 58 This decision depends primarily upon two propositions: firstly, that the challenged jurisdiction was incidental to the jurisdiction to dissolve marriages, which latter jurisdiction was clearly judicial; secondly, that to the extent that the breadth of the discretion might appear to be too wide for judicial exercise, it was to be read down by reference to established principles and to the context of the matrimonial and financial circumstances of the parties. This approach to the width of an apparently unlimited discretion was again adopted in Talga Ltd v MBC International Ltd (1976) 133 CLR 622 at 629 (per Gibbs J) and 634 (per Stephen, Mason and Jacobs JJ). I will return to that case at a later stage. 59 In The Queen v Joske; Ex parte Shop Distributive and Allied Employees' Association (1976) 135 CLR 194, the Court considered the validity of conferment upon the Australian Industrial Court of jurisdiction to determine whether "an invalidity" had occurred in the affairs of a registered industrial organization and to make such declaration as it might think proper. There was an express power to make "such order as it thinks fit to rectify or cause to be rectified the invalidity, or to negative, modify or cause to be modified the consequences in law of the invalidity, or to validate any act, matter or thing rendered invalid by or as a result of the invalidity …". The Industrial Court was required to satisfy itself that any such order would not do substantial injustice to the organization, any member or creditor or any other person having dealings with it. It was also empowered to declare that "(a) a part of the organization … has ceased to exist or to function effectively and there are no effective means under the rules of the organizational branch by which it can be reconstituted or enabled to function effectively …; or (b) an office or position in the organization or in a branch of the organization is vacant and there are no effective means under the rules of the organization or branch to fill the office or position …". A further provision authorized the Industrial Court to approve schemes for the reconstitution of such organizations and to fill vacant offices. Again there was an obligation to ensure that no substantial injustice was done to the organization or to any member. 60 Stephen J said at 210-211 (Barwick CJ concurring): It is the power to rectify, modify or validate as the court thinks fit, and the power to determine whether an organization has ceased "to function effectively" and, if so, to sanction a scheme to rectify the position, in each case qualified only by the provision as to substantial injustice, that are particularly seized upon by the prosecutors as revealing in these sections that other than judicial power has been conferred on the Court. These provisions are concerned exclusively with the nature of the remedies open to the Court once it has adjudicated upon matters which have been initiated by a party and the determination of which is an eminently judicial function. The particular nature of an available remedy, at least when it is one not unfamiliar as part of the traditional equipment of courts of law or equity, can seldom be such as of itself to involve a court in a non-judicial function. The power … to relieve against what otherwise would be the invalidating effect of non-compliance with requirements of the law is a commonplace of our jurisprudence and can scarcely of itself involve any overstepping of the bounds of judicial power. To qualify, by reference to the avoidance of "substantial injustice", the exercise of the wide discretionary power conferred by the words "as it thinks fit" introduces a concept with which courts are familiar and which does nothing to suggest a non-judicial function. By directing attention to the effect of a proposed order upon all those likely to be affected by it the Court is required to have regard to all the circumstances of the case. [His Honour then referred to the decision in Conimos v Conimos (supra).] No different considerations appear to me to apply to [the relevant section]; when the Court has made a declaration under sub-s. (1) of that section a situation is disclosed in which some part of a registered organization has ceased to exist or has become moribund; the rules of the organization are found to provide no solution but some efficacious remedy is called for; the traditional response of the law in such a case has been to do very much what sub-s. (2) provides for, to empower the Court to supervise a scheme for reconstitution of the defunct or moribund organization. In the fields of charitable trusts and of companies the same concept has been employed in exercise of power eminently judicial in character. It is said that the reference in [the section] to an organization having ceased "to function effectively" invokes broad considerations of industrial policy such as are referred to in the recitation of the chief objects of the legislation … . I regard the reference to effective functioning as much more limited in scope; it is concerned with the performance, by the "part of the organization" which has been found wanting, of its function as such a part. Whether it is, in this sense, functioning effectively is a matter which is entirely within the scope of determination by the exercise of judicial functions. 61 Mason and Murphy JJ delivered joint reasons to somewhat similar effect. Two passages in their Honours' reasons are arguably of particular significance for present purposes. The first appears at 215-6 as follows: Many examples are to be found in the exercise of judicial power of orders which alter the rights of the parties or are the source of new rights. Likewise, there are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised - nevertheless they have been accepted as involving the exercise of judicial power … . It is no objection that the function entrusted to the Court is novel and that the Court cannot in exercising its discretion call in aid standards elaborated and refined in past decision; it is for the Court to develop and elaborate criteria regulating the discretion, having regard to the benefits which may be expected to flow from the making of an order … and the impact which such an order will have on the interests of persons who may be affected. 62 The second passage is at 217, where their Honours said, referring to Spicer (BLF): True, it was said in that case that the discretion … was not a judicial discretion but was based "wholly on industrial or administrative considerations" … and involved "considerations of industrial policy" … . We do not regard these observations as indicating that the mere requirement that a court take into account considerations of industrial policy in exercising a discretion is of itself enough to stamp that discretion with the character of a non-judicial function. The observations were made in a context in which there were other grounds supporting the conclusion reached by the Court. 63 It is implicit in the reasons of Stephen J and in those of Mason and Murphy JJ that the power in question was merely a new remedy for resolving disputes within industrial organizations in which questions of validity or organizational effectiveness arose. Their Honours referred to analogous proceedings in other legal contexts as demonstrating the suitability for judicial resolution of such problems. I will discuss the reference by Mason and Murphy JJ to "industrial policy" in the context of the next case. 64 In Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, the Court was concerned with power conferred by the Corporations Law upon the Corporations and Securities Panel to determine whether "unacceptable circumstances" had occurred in connection with a takeover offer. It was submitted that such a power was an exercise of the judicial power of the Commonwealth and therefore improperly conferred upon a body which was not a court within the meaning of Ch III. The Court said unanimously at 188-191: True it is that the making of binding declarations of right by way of adjudication of disputes about rights and obligations arising from the operation of the law upon past events or conduct is a classical instance of the exercise of judicial power … . But the declarations for which [the Law] provides are not binding declarations of right in the sense in which that term is used, more particularly in the context of the exercise of judicial power. That is because the adjudication which the Panel under [the Law] is called upon to make is not an adjudication of a dispute about rights and obligations arising solely from the operation of the law on past events or conduct. The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power ... . Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power. It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised … . So, if the ultimate decision may be determined, not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power … . That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles. Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power. In Re Ranger Uranium Mines … the Court said: "The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration." The Court was then speaking with reference to an arbitral function of the Conciliation and Arbitration Commission but, as the judgment shows …, the remarks apply with equal force to determinations made for administrative, executive or legislative purposes. … In some situations, the fact that the object of the determination is to bring into existence by that determination a new set of rights and obligations is not an answer to the claim that the function is one which entails the exercise of judicial power. The Parliament can, if it chooses, legislate with respect to rights and obligations by vesting jurisdiction in courts to make orders creating those rights or imposing those liabilities. It is an expedient which is sometimes adopted when Parliament decides to confer upon a court or tribunal a discretionary authority to make orders which create rights or impose liabilities. This legislative technique and its consequences in terms of federal jurisdiction were discussed by Dixon J. in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett … . Leaving aside problems that might arise because of the subject-matter involved or because of some prescribed procedure not in keeping with the judicial process, where a discretionary authority is conferred upon a court and the discretionary authority is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to policy considerations or other matters not specified by the legislature, it will be possible to conclude that the determination by the court gives effect to rights and obligations for which the statute provides and that the determination constitutes an exercise of judicial power … . However, where, as here, the function of making orders creating new rights and obligations is reposed in a tribunal which is not a court and considerations of policy have an important part to play in the determination to be made by the tribunal, there is no acceptable foundation for the contention that the tribunal, in this case the Panel, is entrusted with the exercise of judicial power. 65 This decision establishes that: · some categories of "subject matter" may be inappropriate to the conferment of jurisdiction upon a court; · a conferment of jurisdiction may be invalid because it involves some "prescribed procedure not in keeping with the judicial process"; and · any judicial discretion must be exercisable by reference to legal principles and/or prescribed criteria, and not by reference to "policy considerations or other matters not specified by the legislation …". 66 Mason CJ was a party to this decision. It might be thought that the exclusion of policy considerations from factors permissibly relevant to the exercise of a validly conferred discretion was inconsistent with the views expressed by his Honour and Murphy J in Joske. However any apparent difference in approach is probably attributable to the imprecise meaning of the word "policy". If the objectives of the legislation in question are clearly specified and the methods for their achievement stipulated, there can be little doubt that a court could validly receive jurisdiction to resolve disputes concerning steps taken to achieve those objectives, although such matters could be described as "policy considerations". On the other hand, it would clearly be inappropriate to require that a court take into account non-legislative policies prescribed from time to time by the executive government. It is likely that in Joske, Mason and Murphy JJ were referring to the former situation while in Precision Data Holdings the Court was referring to a situation more like the latter. Of course, the less precise the objectives and the less specific the identified methods for their achievement, the more likely it will be that the decision involves consideration of matters of policy. 67 In Spicer (BLF), the Court was concerned with such an intermediate situation. The legislation did not expressly require the relevant court to take account of government policy, but the prescribed criteria were so broad that they could only be effective if that were the intention. The only available alternative would have been for the court to develop its own policy position to give meaning to the guidelines. In other words, the court would become involved in formulating policy objectives and identifying appropriate methods for achieving those objectives. Either approach would be contrary to the principle of separation of powers. 68 I should mention the decision in Brandy v Human Rights and Equal Opportunity Commission (1994-1995) 183 CLR 245. It is authority for the proposition that immediate enforceability of judgment may be a relevant consideration in determining whether or not a process is judicial (per Mason CJ, Brennan and Toohey JJ at 258-259 and per Deane, Dawson, Gaudron and McHugh JJ at 268-270). 69 Gould v Brown (1998) 193 CLR 346 was the initial challenge to the validity of parts of the legislation constituting the Corporations Law, preceding the decision in Re Wakim, Ex parte McNally (1999) 73 ALJR 839. In the result, because three members of the Court favoured limited validity and three favoured invalidity, that question was not finally resolved. One question in issue was the power conferred on this Court to order examination of witnesses in the course of a winding-up. Brennan CJ and Toohey J said at par 33: True it is that the function of the court in conducting an examination is not the determination of the rights and liabilities of adversaries, but the function is incidental to the winding up. The incidental character of the function and the traditional supervision exercised by the court in performing it are sufficient to stamp it with a judicial character. 70 At pars 67-69, Gaudron J said: The power to examine witnesses conferred by … the Corporations Law is not a power to be exercised in the discharge of judicial duties. It is a power divorced from the determination of any justiciable controversy … . It is not directed to the determination of existing rights or liabilities … . Nor is it directed to the determination of guilt or innocence or the imposition of punishment for breach of the law … . It is unrelated to the making of any binding decision as to existing powers, duties or status … . And it is not associated with the conferral or adjustment of rights or interests in accordance with legal standards … . It is simply a power to obtain information. As such, it is not judicial power. However, that is not to say that the power to examine witnesses in relation to the affairs of a corporation can never be conferred on a federal court. Courts have long exercised jurisdiction with respect to the bankruptcy of individuals and the insolvency of companies, their procedures in that regard being essentially judicial in the sense that they usually involve parties - the petitioner and creditor - and invariably require proof of factual matters by application of the rules of evidence in proceedings conducted in accordance with judicial procedures. Moreover, the power to order the winding up of a company or the sequestration of a bankrupt's estate is exercised by "the application of legal principles to proved states of fact and not upon considerations of policy or expediency." … It may be that those powers need not be conferred on courts, but, being so conferred, they are readily characterised as judicial in character. The curial examination of witnesses in relation to the affairs of persons who have been declared bankrupt and companies that have been wound up is a familiar feature of bankruptcy and insolvency law. And a power to examine witnesses with respect to matters relevant to the proper administration of the bankrupt's estate or the winding up of the company is readily seen as a power "attendant upon or incidental to the fulfilment of [the power to make sequestration and winding-up orders]" … . Accordingly, if jurisdiction is conferred upon a federal court with respect to bankruptcy matters or matters involving the winding up of corporations, a power of examination may also be conferred as incidental or ancillary to the exercise of judicial power in that regard. 71 Kirby J said at pars 327-328: In determining whether particular activity is within, or incidental to, the exercise of judicial power, it is permissible and often helpful to examine the judicial activity as it existed before and at the time the Constitution was adopted … . In the analogous and antecedent field of bankruptcy law, judges have been performing similar functions of examinations for more than four centuries … . Judges have done so, … to ensure that such examinations are "not made an instrument of oppression, injustice, or of needless injury to the individual". The use of judges in this way has often been noted by this Court … as a necessary and usual step in the process of the judicial winding up of a company … . Such functions therefore fall quite readily within the test of activity incidental to the exercise of judicial power … . Against the background of such a long established performance of judicial functions in the same or analogous fields, it is impossible to suggest that the examination of officers, on the application of a liquidator, falls outside the scope of the judicial power properly exercisable by a federal court … . Although of their own nature such functions might seem at first blush to be non judicial in character, in their context and discharged in connection with the performance of judicial functions, they fall within the judicial power or what is incidental to it … . 72 The Court characterized the relevant power as judicial by reference to its "incidental" nature, by analogy and by historical practice. 73 In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, the High Court was concerned with a provision of the Corporations Law which provided that the Federal Court might "make such order as it thinks appropriate about how [Pt 5.3A of the Corporations Law] is to operate in relation to a particular company." That part relates to administration as an alternative to winding-up. The majority (Brennan CJ, McHugh, Gummow, Kirby & Hayne JJ), at par 63, assumed that the Federal Court could exercise that power, apparently reserving the question of the correctness of that assumption. Gaudron J (at par 150) doubted whether such a conferment of jurisdiction was within constitutional power. 74 In Abebe v Commonwealth (1999) 73 ALJR 584 the High Court considered the conferment upon the Federal Court of jurisdiction to review decisions of the Refugee Review Tribunal upon certain limited grounds. It was submitted that this involved conferment of jurisdiction in respect of part of a matter, whilst the Constitution required conferment of jurisdiction in respect of the whole matter. At pars 24-25, Gleeson CJ and McHugh J said: The jurisprudence of this Court makes it clear that federal jurisdiction is limited to deciding "matters". Central to the notion of a "matter" is the determination of rights, duties, liabilities and obligations in a legal proceeding. In In Re Judiciary and Navigation Acts, a majority of this Court pointed out that the term "matter" in s 76 did not mean "a legal proceeding, but rather the subject matter for determination in a legal proceeding". … Similarly, in South Australia v Victoria, Griffith CJ said that "[t]he word 'matters' was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice". The Chief Justice went on to say that the matter "must be such that it can be determined upon principles of law". A "matter" is therefore ordinarily concerned with "some immediate right, duty or liability to be established by the determination of the Court". … [T]he determination of rights, duties and liabilities by reference to legal rules, principles or standards in curial proceedings is at the heart of the notion of a "matter" for constitutional purposes. It follows that the Parliament is acting within the power conferred by s 77 of the Constitution whenever it authorises a federal or State court to determine, by reference to a legal rule, principle or standard, the rights, duties or liabilities of litigants which arise out of controversies that fall within any of the descriptions in pars (i) - (v) of s 75 or pars (i) - (iv) of s 76 of the Constitution. 75 Kirby J said at par 215: The meaning of the word "matter" is elusive. Established doctrine, not challenged in these proceedings, holds that the word has the same meaning in each of the sections in Ch III in which it is used. It does not connote "a legal proceeding" as the parties may have chosen to frame it. Rather it refers to "the subject matter for determination in a legal proceeding". It is not any subject matter upon which the parties may disagree or about which they have a dispute susceptible to independent determination. It must be a subject matter which is apt for determination by a court of law by reference to some "immediate right, duty or liability" susceptible of determination by such a court. Upon this notion of "matter" rest the restrictions which this Court has applied to legislative attempts to confer upon a Ch III court, including this Court, a jurisdiction to provide advisory opinions or to decide abstract questions divorced from the actual administration of the law. 76 At par 276, Callinan J said: For the purposes of ss 75-77 of the Constitution, the term "matter" means the subject matter for determination in a legal proceeding, and not necessarily the legal proceeding itself in exactly the form in which it was first presented. And, as Griffith CJ said in South Australia v Victoria, a matter must be such that it can be determined on principles of law. 77 By way of completeness, I should say that I was also referred to Sue v Hill (1999) 73 ALJR 1016. However that case appears to add nothing to earlier cases for present purposes. 78 I propose to refer briefly to a number of other cases which are relevant, not because of their assistance in identifying the limits of the judicial power, but because they assist in understanding some of the less obvious reasons for separating the judicial power from the legislative and executive powers. 79 In Grollo v Palmer (1995) 184 CLR 348 at 364-5, the majority (Brennan CJ, Deane, Dawson and Toohey JJ), in considering the conferment of non-judicial functions upon a judge as persona designata, noted two limitations upon the entitlement of the legislature to do so. The first is that such function may not be conferred without the judge's consent. The second is that no function may be conferred which is incompatible, either with the judge's performance of his or her judicial functions, or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. 80 At 365, their Honours said: The incompatibility condition may arise in a number of different ways. Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth. 81 Two other cases demonstrate the extent of this concern. In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, the Court considered the acceptance by a judge of this Court of an appointment to prepare a report under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) in connection with the Hindmarsh Island dispute. This was clearly an appointment of the Judge as persona designata to perform a non-judicial function. The question for determination was whether or not performance of that function was constitutionally compatible with judicial office. At 9, the majority (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ) observed: One reason why the Constitution restricts the availability of Ch III judges to perform non-judicial functions was stated in a passage in the opinion of the Supreme Court of the United States in Mistretta … adopted by McHugh J … and Gummow J … in Grollo: "The legitimacy of the Judicial Branch ultimately depends upon its reputation for impartiality and non partisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral colours of judicial action." The passages cited from Mistretta are equally relevant to the interpretation of Ch III of the Constitution of this country. Constitutional compatibility of function is not a question of judicial sensitivity. Nor is it a question of the desirability of employing judicial skills in order to perform a service for the Executive Government. The Minister may consider it desirable to nominate a judge to make a s 10 report because he believes that the qualifications and status of the judge are needed to settle a controversy. There may well be situations, the Hindmarsh Island case among them, in which there are vexed issues that can be clarified by an investigation and report made by a person who holds an independent office and possesses the judicial skills of impartially assessing facts and applying the law. Desirability is not the point of the challenge to the nomination of Justice Matthews. The success of the challenge must turn on the meaning to be attributed to the phrase in s 10(1)(c) which speaks of a report to be made by "a person nominated by him", that is, by the Minister. If the function of reporting is constitutionally compatible with the holding of office as a Ch III judge, there is no reason why any restriction should be read into the connotation of the term "person". … But if the function of reporting is constitutionally incompatible with the holding of office as a Ch III judge, s 10(1)(c) must be read down so as to preclude the Minister's nomination of a person who holds office as a Ch III judge … . 82 At 12-13, their Honours continued: The separation of judicial function from the political functions of government is a further constitutional imperative that is designed to achieve the same end, not only by avoiding the occasions when political influence might affect judicial independence but by proscribing occasions that might sap public confidence in the independence of the Judiciary. That independence is especially important in a federal system. 83 At 16, their Honours continued: In the present case, the category of incompatibility that arises for consideration is "the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished" … . Bearing in mind that public confidence in the independence of the judiciary is achieved by a separation of the judges from the persons excising the political functions of government, no functions can be conferred on a Ch III judge that would breach that separation. The separation that is relevant here is separation in the performing of the particular non-judicial function; the principle does not touch personal relationships or relationships outside the area of governmental activity between judges and those who perform legislative or executive functions. Those relationships are matters for judicial sensitivity but not of constitutional significance. Constitutional incompatibility has the effect of limiting legislative and executive power. Where it has that effect, it is discovered on the face of the statute, or on the face of those measures taken pursuant to a statute, that purports or purport to confer a non-judicial function on a Ch III judge. That is not to say that constitutional incompatibility is a matter of mere form. The operation of the statute or of the measures taken pursuant to it is ascertained by looking to the circumstances in which the purported function might be performed. Where a non-judicial power is purportedly conferred, constitutional incompatibility is ascertained by reference to the function that has to be performed to exercise the power. The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government. If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears. Next, an answer must be given to the question whether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law (hereafter "any non-judicial instruction, advice or wish"). If an affirmative answer does not appear, it is clear that the separation has been breached … . … If the function is one which must be performed independently of any non-judicial instruction, advice or wish, a further question arises: Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds - that is, on grounds that are not confined by factors expressly or impliedly prescribed by law? In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests. 84 At 18-20 their Honours continued: The only power conferred by s 10 of the Act is the power conferred on the Minister to make a declaration. A report is no more than a condition precedent to the exercise of the Minister's power to make a declaration. The function of a reporter under s 10 is not performed by way of an independent review of an exercise of the Minister's power. It is performed as an integral part of the process of the Minister's exercise of power. The performance of such a function by a judge places the judge firmly in the echelons of administration, liable to removal by the Minister before the report is made … and shorn of the usual judicial protections …, in the position equivalent to that of a ministerial adviser … . The reporter is not expressly required to hold a hearing, but may nevertheless be obliged to observe requirements of procedural fairness … . That obligation is not significant. Significantly, the competing interests of Aboriginal applicants and of others whose proprietary or pecuniary interests are liable to be affected by the making of a declaration have to be determined. Such a determination is essentially a political function. A reporter may choose to act independently of the Minister in determining the interests to be preferred, but the Act does not require the reporter to disregard ministerial instruction, advice or wish in preparing a report. The report may be prepared so as to accord with ministerial policy. If the Minister has no policy instruction or intimation to give to the reporter, the reporter himself or herself must make political decisions: "the extent of the area that should be protected" … , "the prohibitions and restrictions to be made" … and "the duration of any declaration" … . These decisions are not necessarily made by finding the nature and extent of an Aboriginal connection with the land or by an assessment of the extent to which Aboriginal beliefs or lifestyles are under threat … . The decisions to be made by a reporter are political in character. In addition, the reporter is required … to furnish advice to the Minister upon a question of law, namely, the extent to which the area in question is or may be protected by or under a law of a State or Territory. Yet the giving to the executive of advisory opinions on questions of law is quite alien to the exercise of the judicial power of the Commonwealth … . The separation of the Ch III judge acting as reporter from the Minister has been breached. The function of reporting is therefore incompatible with the holding of office as a Ch III judge. 85 That case concerned non-judicial functions, but many of the features which caused concern are likely to arise in connection with the exercise of the discretion presently under consideration. To exercise the par 31(3)(c) discretion, or to decline to do so will create the appearance of favouring one side or the other in an election. In the absence of objective criteria, it will be difficult, if not impossible to justify any outcome in a way which demonstrates that the decision is based in fact and/or law rather than in considerations of policy or partisan politics. The discretion is closely connected with the executive function in that it involves membership of a body which is, in effect, a department of state. Exercise of the discretion, whilst not subject to external direction, is without express guidelines. The evaluation of conflicting considerations is a commonplace of the judicial process, but the cases demonstrate that there must be some objective basis for the identification and evaluation of relevant considerations. For present purposes, it would be very difficult to identify how the exercise of this discretion might take account of the broad considerations set out in the preamble or s 3 objects, but there are no other express objectives or values which might be taken into account in exercising the discretion. It does not necessarily follow that such exercise is not within the judicial power, but these considerations point in that direction. 86 It is submitted that the conferment of jurisdiction should be upheld by construing the Act so as to ensure that the scope of any exercise of the discretion is so limited that it is properly part of the judicial process. This may involve a construction of the Act which excludes consideration of broad matters of policy. Another device will be to imply limitations upon the apparent ambit of the discretion. Those approaches pose their own problems. It is not uncommon for judicial decisions to be the subject of political dispute, even where such decisions are clearly within the judicial power. In such cases, however, the judgment in question will usually be readily explicable (and therefore justifiable) by reference to the facts and the law, including any criteria specified in relevant legislation. The more difficult it is objectively to identify such criteria, the more difficult it will be to characterize the decision in question as the outcome of the judicial process rather than as a decision based on political or "policy" considerations. Courts must accept the consequences of controversy if the jurisdiction, the exercise of which gives rise to it, is properly part of the judicial power. However, when the courts seek to construe legislation purporting to confer jurisdiction with a view to upholding such conferment, there is always the risk that the consequence will be the appearance of political involvement, notwithstanding the legal niceties of the construction in question. It may not always be appropriate to use such a device to preserve a legislative provision conferring jurisdiction if the price is damaging political involvement. Further, an artificial construction of the legislation in question may convert the relevant function into a form quite different from that which Parliament intended. It will always be a question of construction, but there will be conflicting considerations, the balance of which will not inevitably favour upholding the statutory provision. 87 In Kable v The Director of Public Prosecutions for the State of New South Wales (1995-1996) 189 CLR 51, the High Court considered New South Wales legislation empowering the Supreme Court to order the detention of a named person if satisfied that he was more likely than not to commit a serious act of violence and that it was appropriate, for the protection of a particular person or the community generally, that he be held in custody. The maximum period of detention was six months, but more than one application could be made in relation to that person. Although the line of reasoning adopted by Toohey J differed from that adopted by Gaudron, McHugh and Gummow JJ, all four agreed that the conferment of such jurisdiction on a state Supreme Court was inconsistent with the exercise by that Court of the judicial power of the Commonwealth. At 98, Toohey J said: The Act answers that aspect of incompatibility which was identified in Grollo v Palmer as "the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution … is diminished" … . The function exercised by the Supreme Court under the Act offends Ch III which … reflects an aspect of the doctrine of separation of powers, serving to protect not only the role of the independent judiciary but also the personal interests of litigants in having those interests determined by judges independent of the legislature and the executive … . The function offends that aspect because it requires the Supreme Court to participate in the making of a preventive detention order where no breach of the criminal law is alleged and where there has been no determination of guilt. See also the observations of Gaudron J at 107, McHugh J at 119-121 and Gummow J at 132-134. 88 Finally on this aspect of the case, I set out below an extract from the judgment of Santow J in Re Australasian Memory Pty Ltd (1997) 149 ALR 393 at 435: At one time it seems to have been thought that the presence of a wide element of discretion in the decision-making process reliably marked the decision as one not involving judicial power. But it has since been recognised the exercise of a judicial discretion is a not uncommon element in judicial decision-making … . The limit is crossed where the function conferred is not only discretionary, but creates a dangerous propinquity with the executive or legislature, so undermining public confidence in judicial independence … . 89 The passage appears not to have attracted adverse comment on appeal. See Australasian Memory Pty Ltd v Brien (1998) 45 NSWLR 111. It may well be a fair summary of my own, rather lengthy observations. 90 Two matters cause me to doubt the validity of the conferment of jurisdiction pursuant to par 31(3)(c). The first is the unique role and structure of ATSIC. The second is the absence of any express criteria for the exercise of the discretion conferred by that paragraph. I was told in argument that the conferment of this discretion on the Court was the result of a Senate amendment to the relevant bill and that it was justified by analogy to the use of such a device in companies' and industrial legislation. I doubt the validity of such analogies. I will return to that matter at a later stage. I shall now attempt to identify the role and function of ATSIC.

ROLE AND FUNCTION OF ATSIC 91 The functions of ATSIC are prescribed by s 7 of the Act: (1) The Commission has the following functions: (a) to formulate and implement programs for Aboriginal persons and Torres Strait Islanders; (b) to monitor the effectiveness of programs for Aboriginal persons and Torres Strait Islanders, including programs conducted by bodies other than the Commission; (c) to develop policy proposals to meet national, State, Territory and regional needs and priorities of Aboriginal persons and Torres Strait Islanders; (d) to assist, advise and co-operate with Aboriginal and Torres Strait Islander communities, organisations and individuals at national, State, Territory and regional levels; (e) to advise the Minister on: (i) matters relating to Aboriginal and Torres Strait Islander affairs, including the administration of legislation; and (ii) the co-ordination of the activities of other Commonwealth bodies that affect Aboriginal persons or Torres Strait Islanders; (f) when requested by the Minister, to provide information or advice to the Minister on any matter specified by the Minister; (g) to take such reasonable action as it thinks necessary to protect Aboriginal and Torres Strait Islander cultural material and information, being material or information that is considered sacred or otherwise significant by Aboriginal persons or Torres Strait Islanders; (h) at the request or with the concurrence of the Australian Bureau of Statistics but not otherwise, and without infringing the privacy of any individual, to collect and publish statistical information relating to Aboriginal persons and Torres Strait Islanders; (j) such other functions as are conferred on the Commission by this Act or any other Act; (k) such other functions as are conferred on the Commission by the Prime Minister by notices in force under section 8; (m) such other functions as are expressly conferred on the Commission by a law of a State or of an internal Territory and in respect of which there is in force written approval by the Minister under section 9; (n) to undertake such research as is necessary to enable it to perform any of its other functions; (o) to do anything else that is incidental or conducive to the performance of any of the preceding functions. (2) The information that may be required by the Minister under paragraph (1)(f) includes, but is not limited to, information about the Commission's expenditure. (3) The Minister is not empowered, when requesting information under paragraph (1)(f), to specify the content of the information that is to be provided. (4) In performing its function under paragraph (1)(g), the Commission shall ensure that material or information covered by that paragraph is not disclosed by the Commission if that disclosure would be inconsistent with the views or sensitivities of relevant Aboriginal persons or Torres Strait Islanders. (5) Nothing in this section or in any other provision of this Act shall be read as conferring on the Commission a function of acquiring land except: (a) for its administrative purposes; or (b) for the purpose of the performance of functions expressly conferred on the Commission by this Act. 92 Sections 8 and 9 are also relevant: 8 Prime Minister may confer functions on Commission (1) The Prime Minister may, for the purpose of furthering the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders, confer a departmental function on the Commission. (2) The power under subsection (1) shall be exercised by notice published in the Gazette. (3) In this section: departmental function means a function that has previously been performed by a Department of State of the Commonwealth. 9 Minister may approve performance of functions under State or Territory laws The Minister may, in writing, approve the performance by the Commission of a function expressly conferred on the Commission by a law of a State or an internal Territory. 93 ATSIC is given specific powers as defined in s 10 as follows: 10 Powers of Commission (1) The Commission has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions. (2) The powers of the Commission under subsection (1) include, but are not limited to, the following powers: (a) to negotiate and co-operate with other Commonwealth bodies and with State, Territory and local government bodies; (b) to enter into an agreement for the making of a grant or loan under section 16 to: (i) a State; or (ii) the Australian Capital Territory; or (iii) the Northern Territory; or (iv) an authority of a State or a Territory (including a local government body); (c) to enter into an agreement (other than an agreement referred to in paragraph (b)) with a State or Territory; (d) to accept gifts, grants, bequests and devises made to it; (e) to act as trustee of money and other property vested in it on trust. (3) The power of the Commission to enter into agreements of the kind referred to in paragraph (2)(c) shall not be exercised without the written approval of the Minister. (4) In spite of anything contained in this Act, any money or other property held by the Commission on trust shall be dealt with in accordance with the powers and duties of the Commission as trustee. (5) The powers of the Commission may be exercised within or outside Australia. 94 Sections 11 and 12 are also relevant. They provide: 11 Corporate plan (1) The Commission shall from time to time, in consultation with the Minister, prepare a corporate plan: (a) setting out a statement of the Commission's objectives; and (b) outlining the strategies and policies that the Commission intends to adopt in order to achieve those objectives. (2) Each corporate plan shall relate to a period of at least 3 years and not more than 5 years. (3) The Commission shall, in consultation with the Minister, review the corporate plan regularly. (4) Without limiting the operation of the Freedom of Information Act 1982, the Chief Executive Officer shall ensure that copies of the corporate plan as in force from time to time are: (a) given to each Regional Council; and (b) available for inspection and purchase at each office of the Commission. (5) The Chief Executive Officer shall cause notice of the publication of the corporate plan to be published in the Gazette. 12 Directions by Minister (1) The Commission shall perform its functions and exercise its powers in accordance with such general directions as are given to it by the Minister in writing. (2) Subsection (1) does not empower the Minister to give directions relating to the content of any advice, information or recommendation that may be given by the Commission to a Minister, Department of State or authority of the Commonwealth. (3) Subsection (1) does not empower the Minister to give directions relating to the content of any advice, information or recommendation that may be given by the Commission to a Minister, Department of State or authority of a State or Territory, except for the purpose of protecting the confidentiality of information given to the Commission by the Commonwealth or an authority of the Commonwealth. (4) Subject to subsection (5), the Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given. (5) A copy of a direction laid before the Parliament in accordance with subsection (4) shall not disclose any matter the disclosure of which in that manner would be inconsistent with the views or sensitivities of Aboriginal persons or Torres Strait Islanders because that matter is sacred or otherwise significant to those persons.

95 I have already referred to the preamble and the s 3 objects of the Act. It seems that ATSIC was intended to be the primary mechanism for achieving the aspirations set out in the preamble and the s 3 objects. It is therefore arguable that in construing any provision of the Act, the Court should have regard to the preamble and the s 3 objects, as well as to the content of ss 7-12. There is authority for considering a statutory preamble and express statutory objects in this way. In Wacando v The Commonwealth (1981) 148 CLR 1 at 15-16, Gibbs CJ said, concerning use of statutory preamble as an aid to construction: … if the words of the section are plain and unambiguous their meaning cannot be cut down by reference to the preamble … . 96 Mason J said at 23: It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object. 97 As to statutory objects, in Tickner v Bropho (1993) 114 ALR 409, all three members of the Full Court treated both the title of the relevant legislation and a section setting out its objects as being relevant to its proper construction: per Black CJ at 417-8, per Lockhart J at 433-4 and per French J at 441. 98 It should be noted that the Act requires ATSIC to consult with the Minister concerning its corporate plan (s 11) and permits the Minister to give directions (s 12). Further, it seems that ATSIC is subject to the Commonwealth Authorities and Companies Act 1997 (Cth). Pursuant to s 28 thereof, the Minister may notify the commissioners of government policies which are to apply to it. The commissioners then have a personal duty to ensure that the policies are "carried out" in relation to ATSIC. See that latter act at ss 5 (meaning of "director"); 7 (meaning of "Commonwealth authority"); and 28.

ROLE OF A COMMISSIONER 99 The Act says very little about the role of an individual commissioner. Each holds office on "a full-time basis" (s 30). They are obviously expected to participate in ATSIC meetings, of which there must be at least four in each year (s 44). Sections 38 and 119A require commissioners to disclose prescribed direct or indirect pecuniary interests. This implies that they are expected to bring a degree of personal judgment to their involvement in ATSIC decision-making. On the other hand, commissioners are subject to recall by their constituents (ss 41 and 41A), leading to the inference that they are expected to represent constituents' interests. As I have pointed out, individual commissioners have a duty to ensure that ATSIC complies with relevant government policies. 100 It is probable that attendance at such meetings would not, by itself, be sufficient to justify the full-time status of ATSIC commissioners, particularly as ATSIC has a chief executive officer and staff. It is reasonable to infer that commissioners are expected to perform other functions. Presumably, they must spend time with their constituents in order to ascertain their attitudes and needs. They might also serve on sub-committees of ATSIC and/or boards of bodies such as those established pursuant to Pts 4 and 4A of the Act. It seems likely that the functions actually performed by a commissioner will depend very much upon his or her individual personality, capacity and qualifications. Although the functions of ATSIC belong largely to that area usually assigned to the executive branch of government, the representative role will involve political considerations, concerning the internal affairs of indigenous communities, relations between those communities and government and relations between those communities and other Australians.

THE FEDERAL COURT 101 Apart from any jurisdiction conferred upon this Court by the Judiciary Act 1903 (Cth), the Court acquires jurisdiction under the Act in a number of ways. Section 139A confers a power to grant injunctions restraining breaches of the provisions of the Act in connection with elections. That jurisdiction is to be exercised at first instance by the Supreme Courts of the States, with a right of appeal to this Court. The Administrative Appeals Tribunal has jurisdiction to review decisions pursuant to ss 196 and 196A. This Court presumably has jurisdiction to hear appeals from such decisions pursuant to the Administrative Appeals Tribunal Act 1975 (Cth). The Court also acts as the "court of disputed returns" for elections to Regional Councils, the Torres Strait Regional Authority and in zone elections. See s 140 and Sch 4. Part 3 of Sch 4 confers jurisdiction to determine questions relating to qualification for election to Regional Councils and the Torres Strait Regional Authority. Clause 24 of Sch 4 provides that all decisions of the Court are to be "final and conclusive and without appeal, and shall not be questioned in any way." As I have previously pointed out, the Court also has jurisdiction under ss 31, 102 and 142V of the Act to relieve from disqualification from election or appointment as the result of a prescribed criminal conviction. PARAGRAPH 31(3)(c) and SUB-SECTION 31(4) 102 The Attorney-General submits that in construing s 31, I should have regard to the parliamentary history of the legislation, particularly as it relates to par 31(3)(c). I have done so but am unable to derive assistance beyond the following propositions: · par 31(3)(c) and other aspects of s 31 were designed to provide enhanced protection to indigenous people; · par 31(3)(c) was borrowed from corporate and industrial legislation; and · the Federal Court was expected to apply standards of "fairness" in exercising the jurisdiction to determine whether or not a person should be disqualified from appointment because of a prescribed criminal conviction. 103 With all respect to the Attorney's submissions, I do not find that these propositions assist greatly in solving the problem with which I am faced. 104 The starting point, in determining the validity of the conferment of jurisdiction by par 31(3)(c), must be identification of an appropriate "matter" arising under a law made by the Parliament. It is not enough that the Act authorizes the applicant to bring this application. There must be some underlying claim which he seeks to vindicate. The Attorney submits that as questions of interpretation and factual disputes arising under s 31 are appropriate subjects for judicial determination, the further discretion conferred by par 31(3)(c) is also within power. This argument relies at least partly upon the decision of the High Court in Talga Ltd v MBC International Ltd (1976) 133 CLR 622. That decision concerned the consequences of transactions entered into in breach of provisions of the Banking Act 1974 (Cth) and the Banking (Foreign Exchange) Regulations made thereunder. The relevant legislation provided: No act or thing done, and no contract or other transaction entered into, before the commencement of this Act, shall be deemed to be, or ever to have been, invalid or unenforceable by reason only that a provision of the Banking (Foreign Exchange) Regulations has not been complied with, but the foregoing - (a) does not apply to an act, thing, contract or other transaction the validity of which, has, before 3 December 1974, been called in question, for that reason, in any proceedings, whether or not the proceedings have been completed before that date, except proceedings in which the court holds that it is just and equitable that the act, thing, contract or other transaction should be treated as being valid. 105 The validity of that provision was attacked upon the basis that it purported to confer jurisdiction to create new rights and impose new obligations. That argument was based in part upon the view that the effect of the section was firstly, to invalidate transactions occurring before 3 December 1974 and secondly, to permit their validation. The High Court rejected that view, holding that the section rendered such transactions invalid only if a relevant court had not exercised its jurisdiction to validate them. The Court also rejected a secondary argument that the expression "just and equitable" was inadequate to prescribe sufficiently certain criteria for the exercise of a judicial function. The majority said at 634: [Such argument] loses its point once a situation is attained in which an existing legal relationship subsists, one to the circumstances of which a consideration of what is just and equitable may be applied. Assume a transaction which is declared by the opening words of the section to be neither invalid nor unenforceable unless it falls within the single exception in par. (a). When it comes before a court in proceedings in which its validity has been called in question the issue for the court will be whether it is just and equitable that the transaction should be treated as valid. The court will have before it an existing transaction replete with all its surrounding facts and circumstances and in their light will determine what is just and equitable. In doing so it will certainly be exercising a wide discretion but this is a common-place of the curial process; the court will be bound to act judicially, exercising its discretion by reference only to such considerations affecting the transactions as, on an examination of the legislation, may be seen to be material to the decision which it is called on to make. 106 This approach is not unlike that taken in Joske. To the extent that subs 31(4) confers jurisdiction to determine factual issues arising under subs 31(3) and the proper construction of that sub-section, there can be little doubt that it is valid. Presumably, this would include jurisdiction to resolve legal and factual disputes arising under subs 31(2) where relief is claimed pursuant to subs 31(3). It is tempting, by analogy with Talga and Joske,to characterize the jurisdiction conferred by par 31(3)(c) as "remedial" and "incidental" to the other matters arising for determination under s 31, but such a characterization would be incorrect. It is clear that the jurisdiction conferred by par 31(3)(c) is quite separate and distinct from any other jurisdiction exercisable pursuant to subss 31(3) and (4). 107 The decision in Talga is, nonetheless, relevant to the construction of s 31. It suggests that subss 31(2) and (3) should be construed as disqualifying a person from appointment only if he or she has been convicted and sentenced as prescribed, and the Court has not exercised its discretion pursuant to par 31(3)(c). I accept that construction for present purposes. However the present case still raises three issues, namely: · whether the role, function and structure of ATSIC are such that questions concerning its composition are properly matters for the executive so that the Parliament cannot confer jurisdiction in relation thereto upon a Ch III court; · whether, even if such matters can properly be the subject matter of such judicial determination, the absence of express or implied criteria for the exercise of the discretion conferred by par 31(3)(c) renders it inappropriate for conferment on a such a court; and · whether exercise of that discretion inevitably involves consideration of matters of policy (rather than factual and legal matters) so as to render it inappropriate for judicial determination. 108 As I have said, the decisions in the Shipping Board caseand the Consolidated Press case suggest that questions concerning the organization and structure of bodies established by Parliament pursuant to one or other of the powers conferred by s 51 of the Constitution might be beyond the jurisdiction of the courts. However the majority view in Spicer (BLF) suggests a different approach, namely that while the role and objects of an organization may be relevant to identification of the nature of the discretion in question, they will not be decisive in determining the validity of the purported conferment of jurisdiction. In that case, Kitto J considered at 306 that the "working[s] of the machinery of conciliation and arbitration" would be relevant to any exercise of the discretion in question, pointing "unmistakably to an intention that the performance of the function … is to be approached in a manner incompatible with the restraints peculiar to judicial power." Clearly, Dixon J shared this view, pointing out that the specified criteria in the section appeared to be "an attempt to afford some guidance in the exercise of what one may call an industrial discretion rather than to provide a legal standard governing a judicial decision." The observations of Taylor J at 309-310 are to similar effect. 109 The s 3 objects and the s 7 functions of the Commission suggest that ATSIC was intended to be a substantial organ of government, designed to develop and implement government policy. As I have pointed out, and as is clear from the Act, it was intended to take over the role previously performed by a department of state. The government may confer additional functions upon it, and the Minister may give directions as to the performance of its duties. It must implement government policy. ATSIC is also a representative body, elected by indigenous people from amongst their number. It is designed to facilitate participation by those people in functions of government which are of special interest to them. Although the representative aspect is suggestive of the legislative branch, ATSIC's functions are entirely, or at least substantially executive in nature. As to this executive role, the suitability of government advisers and their appointment are very much matters for the executive branch. As to ATSIC's representative role, it will generally be for the electors to decide who should represent them and the weight to be given to candidates' backgrounds and qualifications. If one were to address the issue without regard to the fact that the discretion in question has been conferred upon this Court, one would conclude that the suitability of persons for appointment to ATSIC should be a matter for the executive, although that would not preclude the electoral process prescribed by the Act. 110 Counsel for the Attorney sought to justify the conferment of jurisdiction by way of analogy with provisions in the Corporations Law and antecedent legislation, providing for disqualification from involvement in the management of corporations, whilst also making provision for judicial relief from such disqualification. He also sought to draw an analogy between the par 31(3)(c) discretion and somewhat similar provisions in the Workplace Relations Act 1996 (Cth) permitting judicial relief from disqualification in connection with election to office in industrial organizations. Such analogies are, in my view, unconvincing for two main reasons: · the structure, role and likely functions of ATSIC cannot be compared with those of either a corporation or an industrial organization; and · in the case of both analogies, the relevant criteria for the exercise of the discretion are "ascertained or ascertainable"; this is not the case with the par 31(3)(c) discretion.

THE CORPORATIONS LAW 111 The Attorney submits that companies' legislation has, for many years, conferred power on courts to relieve from such disqualification. This is certainly true. The present provision, s 206G of the Corporations Law, provides: A person who is disqualified from managing corporations may apply to the Court for leave to manage: (a) corporations; or (b) a particular class of corporations; or (c) a particular corporation; … . 112 This provision was adopted in the 1999 amendments and came into force earlier this year. For present purposes it is critically different in one respect from previous analogous provisions. Before the amendment, s 229 of the Corporations Law prohibited certain persons from managing corporations without the leave of a prescribed court. That provision was interpreted by Drummond J, in Re Shneider (1996) 71 FCR 69 at 72-73, as permitting the court to authorize management of a particular corporation or corporations, but not to grant "blanket" authority to manage unidentified corporations. I have no doubt that this decision was correct. The current section (s 206G), with its reference to management of "corporations" or "a particular class of corporations", clearly confers a wider power which may well permit the court to authorize management of corporations which are unidentified at the time at which the order is made. This change in the effect of the legislation has some relevance for present purposes. In my view, this wider discretion more closely resembles that conferred by par 31(3)(c) than did that previously conferred by s 229 and by analogous provisions in earlier legislation, including s 122 of the uniform Companies Act (1961) and subs 227(2) of the Companies Code (1981). 113 In those earlier provisions, the nature of the discretion and the circumstances relevant to its exercise were much more easily ascertained from the legislation than might, at first glance, have appeared. Firstly, the issue was to be resolved by reference to the affairs of an identified company, the structure and undertaking of which would be known. It would be possible to identify with relative certainty its shareholders, its creditors, its employees and its financial position. It was possible to identify, fairly precisely, the nature of the functions likely to be undertaken by the person in question, should he or she be permitted to participate in management, and the potential victims of any harm caused by his or her default in such management. These factors would say much about the considerations relevant to the exercise of the discretion. Further, the aim of the provision was clearly to protect those who might deal with the company in any capacity including, in particular, those whom I have mentioned. 114 As appears from the decision of Slicer J of the Supreme Court of Tasmania in Hosken v Australian Securities and Investments Commission (1998) 28 ACSR 542 at 546-7, it was also relevant to the exercise of that discretion that the applicant had particular skills which would not otherwise be available to the company in question. Indeed, as I understand it, applications of this kind have usually been made in connection with relatively small companies, often "family" companies, where the proposed manager or director was the only available source of appropriate skills, or was the only person willing to act. Such "skills" were also treated as relevant in Re C & J Hazell Holdings Pty Ltd (1991) 4 ACSR 703 (per Cox J at 707-8) and in Re McLaughlin (1993) 12 ACSR 374 (per Kennedy J at 379). Similarly, under the equivalent English legislation, the primary inquiries are as to protection of the public and as to the practical need on the part of the company to have the applicant act as a director or be involved in its management. See Palmer's Company Law, Vol 2, par 8.111/1. The latter consideration would have little relevance to an application for general leave as contemplated by the 1999 amendment. 115 From 1961 until the 1999 amendment, disqualification was the consequence of conviction of an offence involving fraud or dishonesty, or committed in connection with corporate management, or involving breach of certain provisions of the relevant legislation. This approach was also adopted in the 1999 amendment, save that disqualification now also attends conviction for breach of the law of a foreign country, which breach is punishable by imprisonment for a period greater than twelve months. Thus, at least until the 1999 amendment, the legislation focussed on demonstrated dishonesty or corporate mismanagement. Such focus had the effect of identifying the relevant risks to be guarded against, thus narrowing the considerations relevant to the discretion to exempt from disqualification. Sub-sections 31(2) and (3) of the Act contemplate disqualification for any offence, provided only that the prescribed sentence is imposed. It is therefore very difficult to identify the precise risks which the statutory prescription for disqualification seeks to remedy. 116 In addition to these specific matters, it must also be noted that a corporation has a range of activities which is comparatively limited and of importance only to those associated with it. On the other hand, the range of activities in which ATSIC may engage is much wider, more difficult to predict and of great public importance. Further, all matters affecting ATSIC are inevitably in the public domain and closely associated with important questions of public policy. In addition, the functions of individual commissioners are not prescribed or easily capable of identification. Although management of a company is an elastic concept, it is not difficult to identify its meaning in a particular case. 117 When one considers these matters, there is, in my view, no valid analogy between the discretion conferred by the Act and that which has been traditionally exercised by courts under the Corporations Law and preceding analogous legislation. It is true that since the 1999 amendment, the latter discretion appears to be wider than previously, but the analogy can only be relevant for present purposes if it demonstrates an established aspect of the judicial function. Recent expansion of long-established practice does not assist. INDUSTRIAL LEGISLATION 118 Sections 227 and 228 of the Workplace Relations Act provide that a person is to be disqualified from office in an industrial organization if convicted of: (a) an offence under a law of the Commonwealth, a State or Territory, or another country, involving fraud or dishonesty and punishable on conviction by imprisonment for a period of 3 months or more; (b) an offence against [various sections of the Act]; (c) any other offence in relation to the formation, registration or management of an association or organisation; or (d) any other offence under a law of the Commonwealth, a State or Territory, or another country, involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property. 119 Sections 229 and 230 provide for application to the Court for exemption from such disqualification. Section 231 provides: For the purposes of exercising the power under section 229 or 230 to grant or refuse leave, to a person who has been convicted of a prescribed offence, to hold office in organisations, the court shall have regard to: (a) the nature of the prescribed offence; (b) the circumstances of, and the nature of the person's involvement in, the commission of the prescribed offence; (c) the general character of the person; (d) the fitness of the person to be involved in the management of organisations, having regard to the conviction for the prescribed offence; and (e) any other matter that, in the court's opinion, is relevant. 120 Once again, I am of the view that no valid analogy can be drawn between the discretion conferred by the Workplace Relations Act and the present discretion. An industrial organization is concerned only with the industrial interests (broad as these may be) of its members who constitute a limited and readily identifiable class, even if the organization is large. Although some of the earlier cases suggest that such an organization has a public role going beyond its duty to its members, that role is nonetheless limited. In no sense could it be compared with that of a department of state, whereas ATSIC performs the functions of such a department. Under the Workplace Relations Act, the offences, conviction for which will lead to disqualification, are limited to offences of dishonesty, offences in connection with the conduct of organizations and offences involving violence to the person or property. Again, this further limits the circumstances in which the discretion may be invoked and says something about the nature of the discretion and the factors relevant to its exercise. Finally, the Act prescribes criteria for the exercise of the discretion. Although the catch-all phrase "any other matter that, in the court's opinion, is relevant", may suggest an unlimited discretion, the various matters to which I have already referred and in particular, the other specified criteria, give a basis for assessing the relevance or irrelevance of any other factor.

PARAGRAPH 31(3)(c) - THE "MATTER" 121 Adopting the words used by Dixon CJ in Spicer (BLF), "… there is no reason why … jurisdiction … might not be conferred upon a federal judicial court by an enactment framed in some form appropriate to s. 76(ii.) of the Constitution", to exercise a discretion to relieve from disqualification for appointment to ATSIC, which disqualification would otherwise follow from a prescribed conviction. However, if such discretion is to be validly conferred upon such a court, "it must not be an arbitrary discretion; it must be a judicial discretion proceeding upon grounds that are defined or definable, ascertained or ascertainable, and governed accordingly". It follows that the validity or otherwise of the conferment of jurisdiction pursuant to s 31(3)(c) will depend upon whether it is possible to ascertain from the legislation, sufficient guidance as to the criteria to be considered in its exercise. In considering this matter it will be necessary, at some stage, to give weight to the fact that Parliament has chosen the Court as its preferred repository for the discretion, in order to determine whether or not that factor, when taken with all other relevant factors, leads to a conclusion in favour of validity. In this exercise, the role and functions of ATSIC will also be relevant considerations.

CRITERIA - PREAMBLE, SECTIONS 3, 7-14 122 It was at least tacitly submitted that the preamble and the s 3 objects offer some guidance to the proper construction of par 31(3)(c). In the following discussion, I will also have regard to ss 7-14. These provisions are relevant in two ways. Firstly, they demonstrate that ATSIC is very much a part of the executive branch of government. Secondly, they may give guidance as to the factors to be considered in exercising the par 31(3)(c) discretion. However, if such guidance compels consideration of factors which are too imprecise for consideration in the judicial process, or too closely associated with matters of policy for such consideration, then the purported conferment of jurisdiction is not authorized by s 76 of the Constitution. 123 The preamble appears to be a blueprint for effecting "reconciliation" between indigenous people and the rest of the Australian population. It also proposes guidelines for the rehabilitation of indigenous people and for their relief from any disadvantage suffered since the commencement of European settlement. As I have said, ATSIC is the principal mechanism for achieving these goals. The personalities, personal qualities and qualifications of the commissioners will be key factors in the successful performance of its role. Decisions as to suitability for appointment will inevitably involve political judgment. A candidate may be so prominent in one or other of the indigenous communities that achievement of the aspirations set out in the preamble and the s 3 objects, will be greatly facilitated by his or her appointment as a commissioner, notwithstanding disqualification pursuant to s 31. It seems that a former South African government, conscious of the standing of Nelson Mandala amongst indigenous South Africans, made decisions as to his treatment in prison and eventual release, taking into account his potential role in the resolution of South Africa's racial problems. (John Carlin, "The Long Walk of Nelson Mandela" (1999) <http://www.pbs.org/wgbh/pages/frontline/shows/mandela/index.html.) Such considerations are clearly political and quite inappropriate for assessment in the judicial process. It might be thought that the present problem is far removed from the South African experience, but there is much in the material put before me in this case which goes to the applicant's capacity and status in the indigenous community rather than to his "character". Although the South African example may be extreme, it gives an indication of the issues which may arise if the Court is to have regard to the preamble and s 3 objects in exercising the par 31(3)(c) discretion. It may be quite artificial to assess the suitability of a candidate for nomination as a commissioner without regard to the milieu in which ATSIC operates as is revealed in the preamble and in ss 3 and 7-12. 124 The electoral process leading to appointment as a commissioner is designed to produce candidates who are perceived by their constituents to be able to represent them in the determination of very weighty matters as is revealed by those provisions of the Act. Judgment about such matters will inevitably be highly subjective. To require the Court to override the will of the relevant constituency would seriously compromise it by drawing it into the purely political sphere. Quite apart from the election process, decisions as to the long-term aspirations and goals identified in the Act and decisions as to appropriate methods for achieving them are also very much matters of value judgment, quite removed from the proper ambit of the judicial process. To give effect to these considerations would necessitate the adoption of current government or ATSIC policy or the development by the Court of its own policy. Neither approach is part of the judicial function. I consider that this Court could not properly be asked to take account of the preamble or the s 3 objects in exercising the discretion under par 31(3)(c). Sections 7-12 confirm the political nature of ATSIC's operation. It follows that if the Act prescribes consideration of such matters in exercising the par 31(3)(c) discretion, then the matter is not part of the judicial power of the Commonwealth.

OTHER POSSIBLE CRITERIA 125 If those considerations are excluded, little remains in the Act from which to identify factors relevant to the exercise of the par 31(3)(c) discretion. In argument, it was suggested that factors such as "good character" and "fitness for office" might be appropriate. This approach assumes that Parliament has prescribed that conviction and sentence should be prima facie evidence that the person in question is not of good character or is unsuited to appointment. This may be because conviction and sentence bespeak relevant unworthiness or incapacity, or because other commissioners might not want to work with such a person, or because it would undermine the public perception of ATSIC if such a convicted person were a commissioner. The argument also assumes that Parliament had in mind the possibility that notwithstanding such prima facie unsuitability, a candidate may be able to demonstrate that he or she is suitable for appointment. The problem with this approach is that the very specific range of circumstances which result in disqualification leaves little or no room for so doing. 126 At first glance, one might think that factors such as: · circumstances of the offence, including effects on others; · factors personal to the offender; and · prospects for, and any demonstration of rehabilitation, might lead the Court to conclude that the offence was not such as to require disqualification. The seriousness of a particular offence might depend upon a wide range of circumstances. Similarly, the personal circumstances of the offender may vary greatly and suggest a more or less lenient view of the offence in question. However these factors are routinely taken into account in the sentencing process. In making disqualification dependent upon the imposition of a particular sentence, the Act has already taken them into account. It seems unlikely that Parliament intended the Court to consider those factors again in exercising the par 31(3)(c) discretion. As to rehabilitation, society and the courts generally accept that as time passes, the relevance of prior misconduct to the assessment of a person's character and suitability for employment declines, provided that he or she has not re-offended. Again, the Act has, in effect, prescribed the relevant time after which rehabilitation is to be presumed, giving no guidelines as to the circumstances in which any shorter time might be adopted. Theoretically, it is possible that the Court might be satisfied as to rehabilitation by the candidate's conduct over a shorter period than the two years stipulated in the Act, but from a practical point of view, that is unlikely. The prescribed sentences are such that only relatively serious offences are in contemplation. It is unlikely that rehabilitation could be demonstrated in a convincing way in any shorter period than that prescribed. It is, in my view, unlikely that the Court was intended to conduct an inquiry into the degree of rehabilitation demonstrated by a potential candidate over a period shorter than two years. 127 I should make one further comment concerning the Minister's submission as to the "fit and proper" test. Counsel referred to a number of cases in which courts have addressed the test, suggesting to the casual reader that it has clear meaning, well-settled by judicial authority and therefore suitable for application by a court. It should be noted, however, that in each case, the relevant court was reviewing an administrative decision. The cases are not examples of courts applying such a test in exercise of a judicial power. In any event, I do not suggest that it will always be impossible to give meaning to such a prescription. I rather suggest that in the present context, it could not be given meaning other than by reference to considerations so imprecise as to be inappropriate in the judicial process. 128 An alternative approach would be to treat par 31(3)(c) as prescribing an assessment of the appropriateness, in all the circumstances, of the candidate's being appointed as a commissioner. However such an approach would take the matter no further. It would still be necessary to identify some objective and rational basis for relaxing the specific criteria for disqualification prescribed in subss 31(2) and (3) without depriving those provisions of all practical meaning. I am unable to identify any such basis. 129 Another possible approach would require consideration of the candidate's particular skills or qualities and ATSIC's need of them, but such an approach poses its own problems. Firstly, it is not easy to identify the skills or qualities which may be appropriate. One might expect that each commissioner should be knowledgeable concerning indigenous people and their needs, and therefore able to represent them, give appropriate advice to government and participate in the development of programmes to meet those needs. All sorts of personal qualities may be useful in performing those functions. Obviously enough, the capacity to work with others would be high on any such list, as would reliability, enthusiasm, dedication, self-discipline and focus. No doubt there are many skills, including vocational skills which would also be of value. However these matters are all quite inappropriate for assessment in the judicial process. In any event, it is most unlikely that any one potential candidate will have such a combination of these qualities and/or qualifications as to render him or her indispensable to ATSIC's workings. It is unlikely that the general disqualification following conviction and sentence, as prescribed by s 31, is to give way to a perception that any one person had skills of such value that the disqualification should be displaced. 130 Finally, it might be thought that the discretion is to be exercised only in "exceptional" circumstances, but that leaves unanswered the fundamental question of how to determine the relevance of allegedly "exceptional" circumstances in a way which is appropriate to the judicial power. 131 Because the factors leading to disqualification pursuant to subss 31(2) and (3) appear in analogous provisions elsewhere in the Act, it might be expected that a consideration of all such provisions would disclose an underlying rationale for the choice of those factors as the grounds for disqualification. However such an examination merely discloses anomalies which further confuse the matter. Unfortunately, they cannot be demonstrated without detailed reference to the Act. For the sake of accuracy I should say that I will hereafter refer only to the provisions relating to Regional Councils and the zones associated with them. I will not refer to the provisions concerning the Torres Strait Regional Authority and representation of the Torres Strait zone on ATSIC, although those latter provisions are substantially analogous to the former. It may assist in understanding what follows if I point out that: · elections for Regional Councils are to be held every three years (see s 104); and · elections of zone representatives are to take place within three months after the end of election periods for Regional Councils (see s 133). 132 As I have said, broadly similar disqualification provisions occur in various parts of the Act. Pursuant to s 102, a person is disqualified from standing for election, or being elected as a member of a Regional Council if he or she has been convicted and sentenced as therein prescribed. The prescribed circumstances are materially the same as those prescribed in s 31 concerning appointment as a commissioner. Section 122 deals with removal of a member of a Regional Council following a resolution of ATSIC, the grounds being broadly similar to the grounds of disqualification prescribed in ss 31 and 102, with two exceptions. Paragraphs 122(1)(aa) and (ba) extend the range of convictions resulting in removal to include convictions for two or more offences leading to one sentence of imprisonment for one year or longer (or three months or longer for offences of dishonesty). Provision is also made for termination of the appointment of a commissioner following conviction and sentence (subs 40(7)), but only in circumstances similar to those prescribed in ss 31 and 102, and without the provisions for multiple offences found in s 122. The reason for this distinction is not apparent, but it does not matter for present purposes. 133 Section 102 (concerning eligibility for election to a Regional Council) appears to contemplate that any application for exemption will be made prior to the election. Presumably it does not permit an exempting order nunc pro tunc. If so, then a favourable exercise of the discretion will place the Court in the position of being seen to endorse a candidate notwithstanding a criminal conviction. In the event of a negative exercise of the discretion, the Court will be seen to exclude a potential candidate who will, no doubt, have his or her own following. The position would be arguably worse if the discretion were invoked after the election. The Court would then be seen to exclude a popularly elected candidate. 134 Section 31 (concerning appointment as a commissioner) gives no indication as to when any application for exemption from disqualification should be made. It might be thought that it should be made, as in this case, after election as zone representative, but before appointment. The application might otherwise be "premature" in that the relevant candidate might not be elected as a zone representative, and so would not be eligible for appointment quite apart from his or her conviction and sentence. Once again, whenever such an application is made and determined, the Court will be exposed to the perception that it has interfered in a democratic election to admit or exclude a candidate on grounds which are not easily identified. 135 However it is in the inter-relationship of these various disqualifying provisions that anomalies arise. I ignore any complication caused by the extended range of relevant offences prescribed by s 122 as compared to the other disqualifying sections. I also exclude from consideration the complicating feature arising in this case from the fact that the conviction occurred prior to the Regional Council election, while the relevant sentence was imposed thereafter. The problems are best demonstrated by considering the procedure by which a person might proceed from candidacy for membership of a Regional Council to appointment as a commissioner and service in that office. 136 In the event that a person has no relevant disqualification, he or she is eligible for election to the relevant Regional Council. If successful, he or she is eligible for election as the relevant zone representative and thereafter, for appointment as commissioner for that zone. This process will be affected by a disqualifying conviction as appears below.

· Regional Council election occurring within two years of conviction (if not actually imprisoned) or release The applicant will need the benefit of an order from the Federal Court pursuant to s 102(2)(c) authorizing election to the Regional Council. If elected, he or she will be qualified for election as a zone representative without further order. If successful, provided that, at the time at which appointment as a commissioner is to occur, the two year period has expired, he or she may be appointed without the benefit of an order pursuant to par 31(3)(c). If that period has not yet expired, it will be necessary to obtain such an order, notwithstanding the earlier order under s 102(2)(c). · Conviction and sentence occurring after election to Regional Council, but before election as zone representative The candidate will be liable to removal from the Regional Council pursuant to s 122 and upon removal, will not be eligible for election as a zone representative pursuant to s 131. In this case, there is no discretion to exempt from disqualification. · Conviction and sentence occurring after election as zone representative, but before appointment This is the present case. It seems that even if the candidate is removed from the Regional Council pursuant to s 122, there is no provision for removing him or her from the position of zone representative. However an order of this Court pursuant to s 31(3)(c) will be necessary before he or she may be appointed as a commissioner. · Conviction and sentence occurring after appointment as commissioner In those circumstances, the Minister "shall terminate the appointment of the Commissioner" (see subs 40(7)). There is no discretion to exempt from disqualification. 137 This rather tortuous exercise demonstrates a number of anomalies. · In some circumstances it may be necessary to make applications under both par 102(2)(c) and par 31(3)(c) in connection with the same relevant disqualifying offence. This implies that notwithstanding similar wording, the considerations relevant to the exercise of the discretion under par 102(2)(c) are not the same as those relevant to the exercise of the discretion under par 31(3)(c). It is arguable that, given the more extensive nature of the responsibilities of an ATSIC commissioner as compared to those of a member of a Regional Council, this is appropriate. Nonetheless it is difficult to see how the respective sections can be said to prescribe ascertainable criteria suitable to guide the exercise of a judicial discretion if it is necessary to construe them having regard to the differences between the unspecified duties of a member of a Regional Council and the unspecified duties of a commissioner. · Conviction and sentence after election to a Regional Council, but before election as a zone representative will result in removal from the Regional Council and consequential disqualification from eligibility for election as such a representative, with no opportunity to apply for judicial relief. On the other hand, conviction and sentence after election as a zone representative, but before appointment, will result in removal from the Regional Council, but appointment as a commissioner will be possible if the Court exercises its jurisdiction under par 31(3)(c) to grant exemption from disqualification. · A similar anomaly is inherent in the fact that conviction and sentence after appointment as a commissioner will result in removal with no provision for exemption. 138 I am frankly at a loss to understand this Byzantine muddle, but confused drafting alone will not invalidate a legislative provision. A court must seek to ascertain the intended meaning. Nonetheless, these anomalies in the operation of various similarly worded provisions suggest that there is no consistent rationale underlying the circumstances of disqualification in the various, similarly worded, disqualification provisions. In the absence of such a rationale, it is unlikely that the Act implicitly prescribes any relevant considerations for the exercise of the discretion conferred by par 31(3)(c) or the other exempting provisions.

UNDERMINING THE CRIMINAL LAW 139 The exercise of the par 31(3)(c) discretion is inimical to judicial exercise for another reason. A primary function of the courts is to uphold the criminal law. Although this Court does not have a substantial role in that area, it should not be seen as undermining the process. In the absence of clear guidelines for the exercise of the discretion, the Court might appear to be simply treating a quite serious offence as not justifying disqualification from high public office.

CONCLUSIONS 140 It follows that I am of the view that the Act does not prescribe appropriate criteria for the exercise by the Court of the discretion purportedly conferred by par 31(3)(c), even having regard to, and giving appropriate weight to the fact that Parliament has seen fit to seek to confer jurisdiction upon the Court. It follows that the paragraph does not confer any part of the judicial power of the Commonwealth. 141 I have considered whether s 15A of the Acts Interpretation Act 1901 (Cth) might be relevant for present purposes. In particular I have had regard to the decision of the High Court in Gould v Brown (supra) at par 38 where Brennan CJ and Toohey J approved the earlier statement by Brennan J (as his Honour then was) in Re Dingjan; Ex parte Wagner (1994-1995) 183 CLR 323 at 339 as follows: [Section] 15A can save a provision that is literally in excess of legislative power only if two conditions are satisfied …: first, that "the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law" … and, second, that the operation of the law upon the subjects within power is not changed by placing a limited construction upon the law … . 142 At par 75, Gaudron J said: And it is well settled that a provision such as s 15A of the Acts Interpretation Act 1901 (Cth) cannot apply to effect the partial validity of law if that would result in the law's changed operation or if it appears that "the law was intended to operate fully and completely according to its terms, or not at all" … . 143 For the reasons which I have already given, it is not possible to find a basis in the Act for so limiting the operation of par 31(3)(c). Section 15A cannot operate to save it. That paragraph is invalid. I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Counsel for the Applicant: Mr A Vasta QC Mr D Kelly

Solicitor for the Applicant: Queensland Aboriginal & Torres Strait Islander Legal Services Secretariat

Counsel for the Commonwealth Attorney-General: Mr C Horan

Solicitor for the Commonwealth Attorney-General: Australian Government Solicitor

Counsel for the Minister for Aboriginal & Torres Strait Islander Affairs: Mr M Swan

Solicitor for the Minister for Aboriginal & Torres Strait Islander Affairs: Australian Government Solicitor

Dates of Hearing: 30 March 2000 5 May 2000

Date of Judgment: 21 July 2000