the appeal
89 It is well accepted that it is difficult, if not impossible, to frame a definition of judicial power, not the least because some features considered to be essential to it, are not conclusive of it: Precision Data Holdings Limited & Ors v Wills & Ors (1991) 173 CLR 167, 188-9. However, there may be said to be two aspects to such an enquiry: the nature or purpose of the power and the manner of its exercise: Sue v Hill (1999) 199 CLR 462. The first requires that there be a binding determination of rights and obligations, and other justiciable claims: Huddart, Parker & Co Proprietary Limited v Moorehead (1909) 8 CLR 330, The Waterside Workers' Federation of Australia v JW Alexander Limited (1918) 25 CLR 434.
90 It was submitted that the power conferred by s 31(4) with respect to subs (3)(c) was essentially judicial, because it involved making a final and binding determination as to the legal status of the applicant. There is no doubt that the Court's declaration would be binding, although there may be a question as to whether anyone, apart from the applicant, is affected by it. Binding declarations of right have been considered as a "classical instance of the exercise of judicial power": (Precision Data, 188). Rights or obligations which did not exist antecedently could not however be the subject of such a declaration. There would be nothing to vindicate, no actual or potential controversy. If rights and obligations arose from the determination itself, a non-judicial and probably a legislative function is likely involved.
91 In Precision Data the Australian Securities Commission was able to apply to the Corporations and Securities Panel for a declaration, where it considered that unacceptable circumstances have, or may have, occurred concerning the acquisition of shares in a company or conduct by a person in relation to shares in, or the affairs of, a company. In that process, the Panel was obliged to take into account the desirability of an efficient, competitive and informed market. The features isolated as important in determining whether the power was judicial or otherwise, were: that the decision was not made by reference to past events; that it did not resolve any controversy between parties; the application was brought by the Commission and the right in question arose from the decision itself and not by the application of legal principles to facts, but by considerations of commercial policy and other unspecified factors which may form part of a subjective assessment. The Court accepted that Parliament might legislate to vest jurisdiction in Courts to create rights or impose liabilities (and see The Commonwealth Court of Conciliation and Arbitration & Ors, Ex parte: Barrett & Ors; Barrett & Others v Opitz & Others and Belcher & Others v Opitz & Others (1945) 70 CLR 141, 165), but that, even so, problems may well remain with the subject matter or the process involved.
92 This appeal, in my view, turns largely upon the absence of criteria and what might necessarily have to be employed to resolve the question as to the applicant's disqualification. It does not turn upon whether some legal right is involved. It would be an incorrect approach to regard the applicant as lacking any right to the position and duties of a Councillor because of the statutory disqualification effected by s 31(2)(a), and then viewing the Court's removal of that disqualification as the creation of a right. A similar question arose in Talga Ltd & Ors v MBC International Ltd & Others (1976) 133 CLR 622, where the Banking Act 1974 (Cth) provided that no act, contract or transaction entered into prior to the commencement of the Act was deemed to be invalid by reason of non-compliance with the regulations. This did not apply to an act, contract or transaction which had been called into question in proceedings for that reason prior to a nominated date "except proceedings in which the court holds that it is just and equitable that the act … be treated as being valid." Gibbs J pointed out that if the Court holds that it is just and equitable that the transactions be treated as valid, the legal effect is that they were never invalid: (629, and see also 633). New rights were not created by the Court's decision.
93 The Act does not appear to contemplate other parties as necessary to an application under s 31(3)(c) or under s 102(2)(c). An application under s 31(3)(c) is not likely to produce a person having a real interest in the outcome of the application, to argue for disqualification, for the reason that the election would have taken place in the Regional Council. There may of course be persons who remain opposed to the appointment, as there may be another candidate competing for election to the Regional Council, but they are not likely to be considered as having the necessary direct or immediate interest in the litigation for standing, their interest being merely consequential upon the Court's decision: The Queen v Ludeke & Others; Ex parte The Customs Officers' Association of Australia, Fourth Division (1985) 155 CLR 513, 522. Submissions on the appeal tended to reinforce the prospect that there would not be such a contradictor. It was submitted that contentions such as that the person potentially disqualified was not a proper, or the best, representative would be irrelevant since the Court's function is not to adjudicate as upon a contest between possible representatives.
94 The Minister, whose function under the Act is to appoint the Councillor as a Commissioner, did not seek to be heard on the application and that may be the position taken in most cases. That is not however to deny that the Minister may have a sufficient interest to support or oppose an application, given the departmental and governmental connection with the Commission and perhaps even a public interest in the standing of the Commission. In that case the Minister's choice not to oppose would amount to no more than the performance of the role of contradictor in a particular manner: per Dawson J, Oil Basins Limited v The Commonwealth of Australia & Others (1993) 178 CLR 643, 649.
95 The fact that there is no dispute or controversy to resolve or a likely contradictor, whilst not determinative of the question, may be an indication that something other than a judicial function or a legal right is involved, as Precision Data exemplifies. It is, in my view, the basis upon which the function is to be exercised and the factors to which regard is to be had by the Court under s 31, which is likely to be determinative of its character.
96 It must be accepted that on many occasions, in the exercise of a judicial power, the Courts are called upon to decide cases which do not have the characteristics of a suit or controversy, for example whether particular transactions are invalid or unenforceable, whether relief should be granted against invalidity, unenforceability or irregularity: per Mason and Murphy JJ, The Queen v Joske & Ors; Ex parte Shop Distributive and Allied Employees' Association & Others (1976) 135 CLR 194, 216. A determination of a petition for an order of sequestration against the property of another person is an example of a matter which may be characterised as an impartial adjudication but one which also affects interests which are opposed: see The Queen v Davison (1954) 90 CLR 353, 383. Other examples pointed to in argument were applications made by trustees for the extension of their powers, applications relating to the law of charities and the numerous areas where the Court is asked to alter a person's status or remove a disqualification, although in many of these cases some public body might have an interest in being heard on an application. Critically though, whilst these cases might not bear the hallmarks of a controversy they will nevertheless involve the application of legal principle to the facts as they are found to be. A reference to legal principle includes criteria which permits assessment; some ascertainable tests: The Queen v Spicer & Others; Ex parte Waterside Workers' Federation of Australia (1957) 100 CLR 312, 317.
97 Where a function may be dealt with either judicially or administratively Courts are not prevented from dealing with it on that account, even if it could be said to be more appropriate to an administrative tribunal or other decision-maker, since Courts are expected to exercise their powers judicially: Sue v Hill, 520. This assumes, of course, that in a particular case the courts are able to exercise their proper function. If one is to speak of performing a function in a judicial manner, which is to say with fairness and detachment, the same could be said of many administrative powers: The Queen v The Trade Practices Tribunal & Ors; Ex parte Tasmanian Breweries Proprietary Limited (1970) 123 CLR 361, 373, Kitto J. What is spoken of as a judicial function here is something more substantive. In the context of determining whether a judicial function is involved, the focus is upon the decision-making process. What is usually meant by the exercise of power in a judicial way is not that there is some approach or formula, to which regard can be had on every occasion where relevant factors are missing, but rather that there is involved a process of the independent and impartial application of the law to facts found on evidence which is probative of facts: Sue v Hill, 519. Such a process was able to be undertaken in that case, the Court holding that the power to invalidate an election, although wide, was not at large: 486, per Gleeson CJ, Gummow & Hayne JJ.
98 A judicial function may not be involved where there are no tests, capable of judicial application, which may be discerned from the conferring legislation (Spicer, 317). In such a case the Court may be driven to apply its own policy considerations. And, whilst policy considerations are not unknown to the law and the Courts, some may be alien to judicial power if they are arbitrary, in the sense that they cannot be drawn from the legislation (Precision Data, 191) or they involve some uncontrolled discretion on the part of the Courts (Sue v Hill, 486).
99 In Tasmanian Breweries the Act provided that if the Trade Practices Tribunal was satisfied that an examinable agreement or practice existed, it could make a determination as to whether the agreement or practice was contrary to the public interest. It provided for the factors to be applied by the Tribunal in such a determination, and they included a policy of encouraging and preserving competition. If it was determined to be contrary to the public interest, the agreement or practice became unenforceable. The provision was held not to involve the exercise of a judicial power. The determination was one which depended upon an opinion formed by the Tribunal, such as was foreign to the nature of judicial power: 373-4.
100 The statutory provision in Tasmanian Breweries did not allow for something in the nature of an adjudication, and some weight was placed upon the fact that only the Commissioner could apply and he or she was not in a position to assert a right to relief. More relevantly, for present purposes, it was pointed out by Kitto J (377) that there was no objective test or standard for the Tribunal to apply in determining whether the agreement or practice had the necessary quality and it necessarily supplied its own subjective criterion to arrive at its opinion. Windeyer J (399-400) considered the public interest question involved indefinite considerations of policy and dismissed an argument that it involved a similar approach to what was "just and equitable" in a given case. Similarly in Precision Data, whilst the function undertaken by the Panel was seen to involve some elements of the exercise of a judicial function, the ultimate decision was to be determined not by the application of legal principles, but by considerations of policy which did not proceed from an exercise of judicial power.
101 It was submitted on this appeal that the Courts often supply criteria or apply tests such as what is "just and equitable" and whether a person is "fit and proper". The Courts often undertake value judgments and opinions: The Attorney-General for the Commonwealth v Breckler & Others (1999) 197 CLR 83, 126, per Kirby J. These considerations are however applied in a context. Whether some outcome is "just and equitable" usually has regard to a relationship between the parties. Whether a person is "fit and proper" is determined by reference to what office is to be held and what duties will be required of them. The enquiry is: fit and proper for what office or function? This test perhaps most readily comes to mind as one which might be applied in the case of applications under ss 31 and 102, but whether it is capable of that application depends upon the role to be undertaken by Commissioners. Whilst there is some subjectivity inherent in the test, it is one which historically the Courts have felt able to adjudicate upon. It was submitted by the applicant, and I accept, that the fact that the Court is faced with difficulties in establishing appropriate criteria to be taken into account, in the exercise of its discretion, does not mean the power to be exercised is not judicial.
102 In relation to the generality of the discretion, the applicant also pointed to the Court's undoubted wide discretion with respect to costs: see Knight & Anor v FP Special Assets Limited & Ors (1992) 174 CLR 178. The submission overlooks the fact that the discretion is exercised in the context of litigation, with a logical and objective approach towards the party who has put another to what is found to be unnecessary expense or has obliged the other to expend monies to vindicate a right.
103 The Solicitor-General sought to draw analogies from some of the functions undertaken by Courts pursuant to the Corporations Law and the Workplace Relations Act 1996. In the context of corporations, there are provisions such as that where a person who is disqualified may nevertheless be appointed as a director "if the appointment is made with permission granted by ASIC [Australian Securities and Investments Commission] … or leave granted by the Court …". The provision is an example of similar functions being dealt with administratively and judicially. A person may apply to the Court for leave to manage a corporation, corporations generally, or a particular class of corporation and the order granting leave may be subject to exceptions and conditions determined by the Court (s 206G). The ASIC may then apply to revoke the leave (s 206G(5)). In the absence of specified criteria, the Court would be able to discern appropriate factors by reference to the responsibilities of a director in a particular corporation or corporations generally and then be able to consider whether the circumstance of the offence, and the person's involvement in it, reflected upon their ability to perform those duties. The discretion could not be said to be at large.
104 The closest analogy provided in argument to the legislation here in question was to provisions such as s 228 Workplace Relations Act 1996, which allows the Court to lift a disqualification of a person who might be elected as the holder of an office in an industrial organisation. There are however some notable differences. The offences which may result in ineligibility, to be a candidate for election or to continue to hold office, are specified - they are those which involve dishonesty or fraud, breaches of the Act relating to the formation or management of an association and extend to those offences involving the intentional use of violence. The criteria for the grant of leave by the Court are also specified under s 231: the nature of the offence and the circumstances of the person's involvement in the commission of it, the person's general character, their fitness to be involved in the management of organisations having regard to the conviction for the offence and any other matter the Court thinks is relevant. The discretion to be applied by the Court applies at all levels - from candidacy through to appointment. Section 228 identifies the organisation and members of the organisation or the Industrial Registrar as applicants for a declaration whether a person is or is not eligible because of the conviction. There is therefore a prospect of a contradictor, if not a controversy.
105 The specification of the offences in the Workplace Relations Act informs the Court that the concerns held about a possible office-holder having committed them relate to that person's propriety, their ability to carry out their duties of management and to act appropriately in situations of conflict. They can be seen as connected with the requirements of the relevant position within the organisation. The criteria specified confirm that the nature of the offence and the person's involvement in it are relevant and the Court would be able to undertake this assessment guided by the information provided by the selection of the prescribed offences. Some of the criteria are general, in particular that which looks to a person's general character, but this has been held to involve an objective assessment capable of being proved as a fact: Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (Davies, Lee & RD Nicholson JJ, 30 July 1996, unreported), Lee J at p 10. Importantly, the Court is provided with tests which may be applied objectively to given facts. There is no requirement to search for underlying assumptions or policies in selecting the criteria to be applied. A judicial function is involved.
106 With this background it is necessary to consider the Act in question, and s 31.
107 One may discern from s 31(2) that there was a concern held about the appropriateness of a person to be appointed as a Commissioner where they have been found to be dishonest or where they have been found guilty of a serious offence, one which has commanded a substantial period of imprisonment. One may accept that for some reason a Commissioner was considered to be automatically disentitled if the conviction occurred whilst they held office, but only to be potentially disqualified if it occurred prior to election or appointment. Unlike other statutory provisions, the Act does not identify the offences giving rise to the specified sentence, which might operate as disentitling to a candidate, save for those involving dishonesty. I apprehend that the reason for the lack of specification is that the role of a Commissioner is multi-faceted, such that it is difficult to identify offences which might in every case be thought to be a prima facie disqualification.
108 Even where the offences considered to be potentially disqualifying are not specified in a statute, the Courts are often able to identify those offences by reference to the functions or duties to be undertaken. So far as concerns the business and financial aspects of the Commission under the Act and the role of a Commissioner in that connection, it is obvious that offences involving dishonesty or impropriety are marked out. The difficulty which arises for the Courts, as it may have for the legislature, is that a Commissioner wears a number of hats and the role of a Commissioner extends beyond dealings with money and property and to areas of policy-making and implementation of policy, in concert with and sometimes at the direction of, the Minister, whilst at the same time acting as a representative for the people in the area from which the Commissioner was elected, ensuring that their interests and those of Aboriginal and Torres Strait Islander peoples generally are taken into account and acting as a co-ordinator between those peoples and various levels of government.
109 It is not possible, in my view, to identify offences which could objectively be said to reflect upon a person's ability to conduct themselves in these roles. Within the community, of which the Commissioner is a representative, views will likely differ concerning what amounts to disentitling conduct. So much will depend upon the applicant's standing within the community. Whether that is something the Court can test in a judicial way is a matter I shall turn to shortly. Some offences are known to occur more regularly in some Aboriginal or Torres Strait Islander communities than elsewhere, and are of great concern to community leaders. Domestic violence in particular comes to mind. Violence against women generally was an example identified by the applicant in submissions. The submission however seemed to me to highlight the fact that the Court was unlikely, in most cases, to be able to participate in an identification of offences as disentitling. The question whether one offence ought to be regarded as disqualifying and another not, is one for society and the legislature, taking into account community views. These are matters upon which the Minister may also have views, but from a different perspective. In addition to the Commissioner's role as a community representative, the Commissioner has a responsible position which has a close connexion to the Minister and the department.
110 It would seem to me to follow from there being no list of offences prescribed by the Act itself, and a Court being unable to supply them by the exercise of some judicial function, that the Court will be unable to take the nature of the particular offence into account, except where it involves dishonesty. It seems clear though that a conviction or sentence for a serious offence was thought to be sufficiently important to disqualify a person in some cases. If it is to be a relevant consideration, it is necessary for the legislature to decide, as a matter of policy, what offences are prescribed.
111 It remains to consider whether the Court may nevertheless apply an objective test based upon the applicant's personal qualities or characteristics.
112 A test assessing whether a person is "fit and proper" directs the Court towards the office or function involved. As already discussed, with respect to a Commissioner, the test would have to extend beyond the duties of management and business, and to enquiries about their fitness as advisers, policy-makers and representatives, areas incapable of independent and objective assessment by the Court.
113 The question which then arises is whether a "good character" test might be applied to an applicant, regardless of the various roles which would be undertaken by them in their capacity as a Commissioner. Lee J in Irving v Minister of State, to which reference is made above, considered that assessment might be undertaken objectively and by reference to proven facts, which is to say it may involve a judicial function, but that it is different from an enquiry as to whether someone has good standing in a community, which would involve a review of subjective public opinion. There is nothing in the Act to indicate which assessment is appropriate. It might be said that the Court, being expected to act judicially, would simply choose the objective assessment of good character, but two problems would remain. In the context of the Act and s 31, a person has been elected by the community. The importance of their representative role is underscored by the objects of the Act. There is therefore no warrant for the Court ignoring this as a factor, as the submissions on the appeal recognised. That is to say, the question before the Court becomes one both as to character and standing in the community. What weight should be given to each and in some cases ought one to prevail? If importance was to be attributed to one test over the other it could, in my view, only be determined by a policy decision - one to be made by the legislature - one which considered and gave effect to the various interests involved - government, the Aboriginal or Torres Strait Islander peoples and perhaps even the public interest. So far as concerns the problem created by the Commissioner being an elected representative, it may be recalled that provisions of the Workplace Relations Act involve the potential disqualification of elected persons, in some cases. The distinction to be drawn as between that Act and the Act here in question is that one is there able to infer, from the prescription of offences and the specified criteria, that the fact of election is not a matter of significance if even a relevant factor. The second problem which would remain is that the good character test would be almost impossible to apply without reference to the nature of the offence. That is something about which the Act offers no guidance, although clearly it was intended to be relevant in some way.