Yanner v Minister, Aboriginal & Torres Strait Islander Affairs

the appeal 29 The notice of appeal named the Minister and the Attorney-General for the Commonwealth as respondents. It identified only one ground, namely that the primary Judge had erred in determining that s 31(3)(c) of the ATSIC Act was invalid. 30 On the hearing of the appeal, Mr Jackson QC appeared with Mr Kelly for the appellant. The Solicitor-General for the Commonwealth appeared with Ms Philippides and Mr Stelios for the Attorney-General. Both Mr Jackson and the Solicitor-General contended that s 31(3)(c) was a valid law of the Commonwealth. Despite the Court inviting the Attorneys-General of the States and Territories to put a contrary argument, none was willing to assist the Court by making any submissions in support of the conclusions reached by the primary Judge. 31 Mr Jackson submitted that the appeal should be allowed and that the Court should proceed to determine the application for a declaration in favour of the appellant, thereby removing his disqualification from appointment as a Commissioner. In the alternative, Mr Jackson contended that the proceedings should be remitted to the primary Judge to determine the application on its merits.

the primary judge's reasoning 32 The primary Judge considered in some detail the principal authorities dealing with the nature of the "judicial power of the Commonwealth" as that expression is used in s 71 of the Constitution. His Honour then addressed the validity of s 31(3)(c) of the ATSIC Act. 33 His Honour's starting point was that s 31(2) and s 31(3) should be construed as disqualifying a person from appointment as a Commission only if he or she has been convicted and sentenced as prescribed and the Court has not exercised its discretion pursuant to s 31(3)(c). On that basis, he considered that the case raised three issues (Re Yanner, at 589): "· whether the role, function and structure of ATSIC are such that questions 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 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." 34 The primary Judge reasoned as follows: · While the role and objects of a "substantial organ of government" such as ATSIC might be relevant to identifying the nature of the discretion in question, they will not be decisive in determining the validity of the purported conferment of jurisdiction (at 589-590). · The Commission's functions were entirely, or at least substantially, executive in nature. As such, if the issue were to be addressed without regard to the fact that the discretion in question had been conferred on the Court, the suitability of persons for appointment to the Commission should be a matter for the executive "although that would not preclude the electoral process prescribed by the Act" (at 590). · Nonetheless, there was no reason why jurisdiction could not be conferred on a federal court, by an enactment framed in terms appropriate to s 76(ii) of the Constitution, to exercise a discretion to relieve a person from disqualification for appointment to the Commission. For such a discretion to be conferred validly, it could not be an arbitrary discretion. It had to be a "judicial discretion proceeding upon grounds that are defined or definable, ascertained or ascertainable, and governed accordingly": The Queen v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277, at 291, per Dixon CJ. In considering whether the legislation provides sufficient criteria to govern the exercise of discretion, it is appropriate to give weight to the fact that Parliament has chosen the Court as its "preferred repository" (at 593). · If consideration were given to the preamble to the ATSIC Act and the objects stated in s 3 in the exercise of the discretion conferred by s 31(3)(c), the Court would have to take account of "political" considerations such as the provenance of a particular individual in the indigenous community. Such considerations were "quite inappropriate for assessment in the judicial process" (at 594). Similarly, to override the will of the relevant constituency would seriously compromise the Court by drawing it into the "purely political sphere". Decisions as to the appropriate means for achieving the goals identified in the ATSIC Act were also matters of value judgment "quite removed from the proper ambit of the judicial process" (at 594-595). · If these considerations were excluded, there was little left in the ATSIC Act from which to identify factors relevant to the exercise of the discretion conferred by s 31(3)(c) of the ATSIC Act. For example, considerations such as the seriousness of the offence and the personal circumstances of the offender had already been taken into account in the sentencing process and it is unlikely that Parliament intended them to be reconsidered under s 31(3)(c) (at 41). Any assessment of the candidate's particular skills or qualities was also inappropriate for assessment in the judicial process (at 596). · Consideration of other provisions in the ATSIC Act similar to s 31(2) and 31(3) (such as s 102 (disqualification of persons seeking election as a member of a Regional Council); s 122 (cessation of membership of a Regional Council)) did not assist in identifying criteria that might be applied to s 31(3)(c). His Honour regarded the legislation as a "Byzantine muddle". Anomalies in the operation of similar provisions suggested that there was no consistent rationale for the various provisions. Accordingly, it was unlikely that Parliament had implicitly prescribed any relevant considerations for the exercise of the discretion conferred by s 31(3)(c) (at 597-599). · No assistance could be derived from provisions such as s 206G of the Corporations Law and ss 229-231 of the Workplace Relations Act 1996 (Cth), which permitted courts to grant relief against disqualification from office as a director or from holding office in an industrial organisation, since these were not analogous to s 31(3)(c) of the ATSIC Act (at 36-39). · The exercise of the discretion conferred by s 31(3)(c) would undermine the criminal law, by potentially treating a serious offence as not justifying disqualification from appointment to the Commission (at 599). · The legislation failed to prescribe appropriate criteria for the exercise of the discretion purportedly conferred by s 31(3)(c).

definitions and pragmatism 35 In The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, in the course of a historical survey of the concept of the separation of powers, Windeyer J remarked (at 392) that "the phrase 'the judicial power of the Commonwealth' in s 71 of the Constitution is derived from America, where it got its meaning from Montesquieu's political dogma. Whether or not Montesquieu originated that dogma, it was from his writing that it became esteemed as a guarantee of civil liberty. He…related it to the idea of checks and balances as factors in the preservation of civil liberty". More recently, in the context of the conferral of non-judicial functions on Chapter III judges, as personae designatae, Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, at 9, adopted a passage from the opinion of the Supreme Court of the United States in Mistretta v United States (1989) 488 US 361, at 407: "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". It is useful to bear these observations in mind when considering whether the conferral of a discretionary power on the Court, in the terms adopted by s 31(3)(c) of the ATSIC Act, contravenes the principle that non-judicial power cannot be conferred on a Chapter III court. 36 The definitions of judicial power found in the authorities are well-known: Huddart Parker & Co Pty Ltd v Moorehead (1908) 8 CLR 330, at 357, per Griffith CJ; The Queen v Davison (1954) 90 CLR 353, at 366-367, per Dixon CJ and McTiernan J. Kitto J summarised the position in Ex Parte Tasmanian Breweries Pty Ltd, at 374, as follows: "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." 37 Notwithstanding the standard definitions, the authorities are replete with references to the fact that "it has never been found possible to frame a definition [of judicial power] that is at once exclusive and exhaustive": The Queen v Davison at 366, per Dixon CJ and McTiernan J; Sue v Hill, at 515, n 187, per Gaudron J. In Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, the Court (at 188-189) attributed the difficulty to "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." 38 In Mistretta v United States, the Supreme Court referred to the "pragmatic, flexible view of differentiated governmental power to which we are heir" (at 381). In Australia, a pragmatic approach has also been adopted to the classification of judicial and non-judicial powers. This is perhaps best illustrated by the proposition that some functions have a "double aspect" (The Queen v Davison, at 369, per Dixon CJ and McTiernan J). The point was explained this way by Mason J (with whom Gibbs CJ, Stephen and Wilson JJ agreed) in The Queen v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617, at 628: "It is also recognized that there are functions which may be classified as either judicial or administrative, according to the way in which they are to be exercised. A function may take its character from that of the tribunal in which it is reposed. Thus, if a function is entrusted to a court, it may be inferred that it is to be exercised judicially; it is otherwise if the function be given to a non-judicial tribunal, for then there is ground for the inference that no exercise of judicial power is involved. As Kitto J said in Reg v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277, at 305: '…sometimes a grant of a 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… 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.'" See also H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547, at 562, per curiam. 39 The chameleon-like character of many functions that can be conferred on either courts or non-judicial bodies has led to the High Court emphasising the importance of historical considerations. Indeed, in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, four members of the Court (Deane, Dawson, Gaudron and McHugh JJ) acknowledged (at 267) that: "[o]ne is tempted to say that, in the end, judicial power is the power exercised by courts and can only be defined by reference to what courts do and the way in which they do it, rather than by recourse to any other classification of functions." Their Honours, however, did not entirely yield to temptation: "But that would be to place reliance upon the elements of history and policy which, whilst they are legitimate considerations, cannot be conclusive". 40 While definitions of judicial power cannot be disregarded, pragmatic considerations can play an important part in the resolution of specific cases. In particular, the nature of the body upon which powers are conferred can influence heavily the classification of the powers for constitutional purposes. The present case involves the conferral of a power on a Chapter III court. As shown by the passage from Kitto J's judgment in the BLF Case, cited in The Queen v Hegarty, the authorities make it clear that the very fact that Parliament chooses to confer a power on a Chapter III court provides a powerful reason to construe the grant of power to conform to the "standards which characterise judicial activities".

the wwf case 41 This point is well illustrated by the last case in which the High Court held that a provision in a Commonwealth enactment was invalid solely on the ground that it purported to confer non-judicial power on a Chapter III court. In The Queen v Spicer; Ex parte Waterside Workers' Federation of Australia (1957) 100 CLR 312, the Court held invalid s 37 of the Stevedoring Industry Act 1954 (Cth). That section permitted a person whose registration as a waterside worker had been cancelled or suspended by the Stevedoring Industry Authority to appeal to the Commonwealth Industrial Court. The Court was empowered to confirm, vary or set aside the cancellation or suspension. The Act specified no criteria to govern the exercise of the power. However, s 36 set out a number of grounds on which the Authority could cancel or suspend a waterside worker's registration. 42 The joint judgment (Dixon CJ, Williams, Kitto and Taylor JJ) observed (at 317) that the existence of a judicial discretion to apply or withhold an appointed remedy was not necessarily inconsistent with the exercise of judicial power. Their Honours added the qualification "that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards". (Emphasis added.) 43 Their Honours thought it significant that s 37 corresponded to an earlier provision which conferred essentially the same powers on the Commonwealth Court of Conciliation and Arbitration (which, despite the name, was not a Chapter III court). In view of the history of the provision, they concluded (at 320) that "the real intention was that the Commonwealth Industrial Court should exercise the same power as theretofore had been reposed in the Commonwealth Court of Conciliation and Arbitration in entertaining appeals against the suspension or cancellation of the registration of a waterside worker. There can be little doubt that it was intended as an industrial power, or if you like an administrative power, the exercise of which should be governed by a consideration not only of the specific matters set out in s 24, which roughly correspond with those enumerated in the present s 36, but also of all matters which might seem relevant to a sound and wise administrative control over the stevedoring industry." In these circumstances, "the words used in s 37 were not intended to be read in any limited fashion so as to accommodate them to the judicial power and restrain their operation within the limits of that power". (Emphasis added.) The judgment continued (at 321): "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." (Emphasis added.) 44 The significance of the WWF Case for present purposes is that, but for the unusual legislative history of s 37, the Court apparently would have been prepared to read the words used by Parliament "so as to accommodate them to the judicial power". In other words, had it not been for the historical circumstance that the power had simply been transferred from a non-judicial tribunal to a court, the High Court would have endeavoured to construe the legislation in conformity with the requirements of Chapter III of the Constitution. 45 This is not to suggest that any given provision, no matter how widely framed, can necessarily be construed in a manner that accommodates it to the exercise of judicial power. But it does suggest that the High Court will be astute, where feasible, to interpret legislation conferring broad discretionary powers on a Chapter III court in a manner that supplies the tests or standards necessary to ensure that the powers can be characterised as judicial.

the later authorities 46 This proposition is borne out, in my opinion, by a series of authorities post-dating the WWF Case. In each case, the High Courtrejected an argument that non-judicial power had been invalidly conferred on a Chapter III court: The Queen v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 (upholding a power to declare that a rule of a union contravenes a requirement that it not be "oppressive, unreasonable or unjust"); Cominos v Cominos (1972) 127 CLR 588 (upholding, inter alia, s 86 of the Matrimonial Causes Act 1959 (Cth) which empowered the court to make an order in matrimonial proceedings for such settlement of property as the court considered "just and equitable" in the circumstances of the case); The Queen v Joske; Ex parte Shop Distributive and Allied Employees' Association (1976) 135 CLR 194 (upholding a provision empowering the Australian Industrial Court to make such order as it thought fit to rectify any invalidity in the affairs of an industrial organisation); Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 (upholding a discretionary power in the Industrial Court to grant an injunction to restrain the practice of resale price maintenance); Talga Ltd v MBC International Ltd (1976) 133 CLR 622 (upholding a provision enabling a court, in the case of non-compliance with the Banking (Foreign Exchange) Regulations, to treat the transaction as valid where it was just and equitable to do so); The Queen v Smithers; Ex parte McMillan (1982) 152 CLR 477 (upholding a law requiring the Federal Court to assess the value of benefits derived by a person from a prescribed narcotics dealing); Sue v Hill (upholding a conferral of power on the High Court, as the Court of Disputed Returns, to exercise its powers "on such grounds as the Court in its discretion thinks just and sufficient" and in accordance with "the substantial merits and good conscience of each case"). 47 None of these cases is identical to the present case. Nonetheless, the reasoning suggests that the absence of express guidelines governing the exercise of a discretion conferred on a court does not mean that the discretion is to be regarded as uncontrolled or arbitrary. Nor does it mean that the power cannot be classified as judicial. 48 In Ex parte Amalgamated Engineering Union, for example, Kitto J acknowledged (at 383) that the criteria to be applied by the court were "more readily to be associated with administrative than with judicial decisions". Yet they were not "so indefinite as to be insusceptible of strictly judicial application". In The Queen v Joske; Ex parte SDAEA, Mason and Murphy JJ, when commenting on the statutory concept of "substantial injustice", said this (at 215-216): "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 (see Cominos v Cominos). 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." (Emphasis added.) In Sue v Hill, at 486, Gleeson CJ, Gummow and Hayne JJ cited the observations of Kitto J and the passage from R v Joske; Ex parte SDAEA with approval; see also at 520, per Gaudron J. 49 In Talga v MBC, Stephen, Mason and Jacobs JJ addressed (at 634) an argument based on the width of the expression "just and equitable": "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 commonplace of the curial process; the court will be bound to act judicially, exercising its discretion by reference only to such considerations affecting the transaction as, on an examination of the legislation, may be seen to be material to the decision which it is called on to make. Irrelevant matters, matters such as the plaintiffs instanced in the course of argument, which have no rational connexion with the policy of the regulations but would be expressive only if the personal predilections of the Court, cannot be allowed by it to play any part in its decision."

is the power compatible with the exercise of judicial power? 50 It is now necessary to consider whether the discretionary power conferred on the Federal Court by s 31(3)(c) and s 31(4) of the ATSIC Act can be construed in a manner compatible with the exercise of judicial power. If so, the grant of power will not contravene Chapter III of the Constitution.

nature of the power 51 Section 31 disqualifies a person from appointment as a Commissioner if he or she has been convicted of certain offences. The effect of s 27(2) of the ATSIC Act is that members of the Commission are appointed by the Minister. The Minister is, however, obliged to appoint the seventeen persons who have been elected under Div 7 of Part 3 to represent the zones: s 27(1)(b). Of course, the Minister can only appoint a person who is not disqualified from appointment as a Commissioner. 52 Ordinarily, a member of a Regional Council who has been convicted of an offence described in s 31(2) of the ATSIC Act will cease to a member of the Council in accordance with the procedure prescribed by s 122. If that procedure is invoked before the election of zone representatives takes place, the convicted person will be ineligible for election since a person can be zone representative only if he or she is a member of a Regional Council: s 131(1). In this situation, it seems that the convicted person cannot seek an exemption from the Court, since s 102(2) (which is in terms similar to s 31(3)) is directed to exemption from the disqualification of a person from "standing from election" or "being elected" as a member of a Regional Council, not the termination of his or her membership. 53 One unusual feature of this case is that, although the appellant's conviction and sentence predated the zone election, his term as a member of the Mt Isa Regional Council was not brought to an end. He was therefore eligible for election as a zone representative, but not for appointment as a Commissioner, at least in the absence of a declaration granted by the Court pursuant to s 31(3)(c). The same position would have applied had the appellant been convicted and sentenced after the zone election but before appointment to the Commission. As the primary Judge pointed out, even if a candidate for appointment as Commissioner is liable to be removed from a Regional Council pursuant to s 122, the legislation does not provide for his or her removal from the position of zone representative. 54 The significance of this statutory scheme for present purposes is that an application under s 31(3)(c) of the ATSIC Act in practice will be made to the Court after the zone election but before the zone representative's appointment as a Commissioner. Thus, one of the circumstances before the Court on such an application will be the fact that the applicant has successfully stood for election as a zone representative. I shall return to this later. 55 There are two particular features of the power conferred on the Court by s 31(3)(c) of the ATSIC Act that might suggest that the power is non-judicial in character. The first is that s 31(3)(c) provides no express standards to guide the Court in the exercise of its discretion. If any such standards are to be formulated, they must be elaborated and refined by the Court itself. The second is that the legislation makes no provision for any particular person or body to be notified of the application and does not contemplate that a contradictor will appear to oppose the grant of relief sought in the application.

legislative history 56 A useful starting point in considering these objections is the legislative history of the provisions under scrutiny. They were proposed by the Opposition in the Senate as amendments to the ATSIC Bill and ultimately accepted by the Government: see Cth Parl Deb, Senate, 6 September 1989, 1052-1057, 1124-1126; 29 September 1989, 1508-1509. As explained by Senator Baume, who moved the amendments, the Opposition was concerned that the original disqualification provisions in the Bill were too lenient. Among the concerns was the fact that persons actually incarcerated for periods of up to five years might nonetheless be eligible for appointment to the Commission. Senator Baume proposed more stringent disqualification provisions in respect of criminal convictions, to be counter-balanced, inter alia, by a power in the Court to relieve from disqualification, thereby permitting the convicted person to argue his or her case for relief. Senator Baume referred by way of analogy to the existing powers of courts to relieve convicted persons from disqualification as directors or officials of industrial organisations. Although not specifically identified in the debate, the legislation Senator Baume had in mind was presumably s 227 of the Companies Code (see now s 206G of the Corporations Law) and ss 229 and 231 of the Industrial Relations Act 1988 (Cth) (see now Workplace Relations Act 1996 (Cth), ss 229, 231). 57 The legislative history is significant at least to the extent that it shows that s 31(3)(c) and s 31(4) of the ATSIC Act were drafted with an eye to similar powers conferred on courts in other fields, especially in relation to companies and industrial organisations. Unlike the legislation addressed in the WWF Case, it was clearly not contemplated by Parliament that the Court would act in a manner inconsistent with the judicial process.

the construction of section 31(3)(c) 58 In view of this legislative history, the principles applicable to similar provisions in other fields provide guidance in construing s 31(3)(c) of the ATSIC Act. In particular, reference should be made to Re Magna Alloys & Research Pty Ltd (1975) 1 ACLR 203 (SCt NSW), where Bowen CJ in Eq formulated the principles governing an application under s 122 of the Companies Act 1961 (NSW), the predecessor to s 206G of the Corporations Law, by a convicted person for leave to act as a director of a company. It is important to note that s 122 contained no express criteria for the grant of leave by a court. Bowen CJ in Eq said this (at 205): "The policy to which s 122 gives effect is that a person convicted of an offence of any of the types specified in that section is not to be permitted to act as a director or to take part in the management of a company. The section is not punitive. It is designed to protect the public and to prevent the corporate structure from being used to the financial detriment of investors, shareholders, creditors and persons dealing with the company. In its operation it is calculated to act as a safeguard against the corporate structure being used by individuals in a manner which is contrary to proper commercial standards. The court is given jurisdiction to grant leave to a person, notwithstanding the prohibition, to act as a director or to take part in the management of a company, but an applicant who comes seeking leave bears the onus of establishing that the general policy of the legislature laid down in the section ought to be made the subject of an exception in his case…. The court in exercising its discretion will have regard to the nature of the offence of which the applicant has been convicted, the nature of his involvement, and the general character of the applicant, including his conduct in the intervening period since he was removed from the board and from management. Where, as here, the applicant seeks leave to become a director and to take part in the management of particular companies the court will consider the structure of those companies, the nature of their businesses and the interests of their shareholders, creditors and employees. One matter to be considered will be the assessment of any risks to those persons or to the public which may appear to be involved in the applicant's assuming positions on the board or in management." 59 This approach has consistently been followed in relation to similar provisions in the Companies Code (s 227(2)), and Corporations Law (previously s 229, now s 206G), as well as in comparable legislation in the industrial field: see Re Marsden (1981) 29 SASR 454 (Legoe J); Re Harrison (1998) 81 FCR 436; Re Ferris (1983) 4 IR 342 (Morling J); Bingham v Gallagher (1985) 65 ALR 531 (Burchett J); Robertson v State Public Services Federation (1993) 49 IR 356 (French J). The last three authorities concerned the Industrial Relations Act 1988 (Cth), s 231, and its predecessor, the Conciliation and Arbitration Act 1904 (Cth), s 132E. The latter provision required the Court to have regard to the following: "(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 organizations, having regard to his conviction of the prescribed offence; and (e) any other matter that, in the opinion of the Court, is relevant." (Section 231 of the Industrial Relations Act 1988 (Cth) is in substance in the same terms.) 60 As the decisions of the High Court to which I have referred make clear, it is common for courts to supply the standards missing from the terms in which Parliament has conferred discretionary powers on a court. This occurs both where legislation uses very general expressions to define the court's powers (such as allowing it to make any order that is "just and equitable") and where, as in the case of the Companies Act and its counterparts, the legislation sets out no standards at all. 61 In my view, the approach taken by the courts in relation to other statutory powers to relieve convicted persons from disqualification for particular offices should be applied, with necessary adaptations, to the construction of s 31(3)(c) of the ATSIC Act. It is true that the functions of the Commission (set out in s 7) are wider in some respects than those discharged by a company director or an official of an industrial organisation. But there is no special difficulty in ascertaining the functions a Commissioner is required or expected to perform. To the extent that the ATSIC Act is imprecise or incomplete, it is open to an applicant to adduce evidence to explain the position (as occurred in the present case). Nor does it seem to me to be beyond the familiar role that courts perform to make a judgment as to whether the particular applicant, despite his or her conviction, can safely be entrusted to discharge the functions of a Commissioner. And once it is accepted that the Court's powers are to be exercised in a "protective", not punitive manner, in accordance with the analysis in Re Magna Alloys, no issue arises as to conflict with the criminal law. 62 In some circumstances the decision to be made on any application brought pursuant to s 31(3)(c) will be easy. If, for example, the applicant will actually be in prison for a substantial period of time, it is hardly likely that he or she will be able to "hold office [as a Commissioner] on a full-time basis" (s 30(1)). If, as in the present case, the applicant's term of imprisonment is suspended or has been served, the inquiry is likely to be more difficult. The nature of the offence committed by the applicant and the circumstances of his or her involvement will plainly be important. For example, a person who has been convicted of a serious offence involving dishonesty and breach of trust may find it difficult to persuade the Court that he or she can adequately discharge those functions of the Commission that manifestly require financial probity (see, for example the powers to make grants or loans (s 14) and the power to subscribe for shares in corporations (s 17)). A person who has been convicted of a serious sexual assault and only recently released from prison, depending on the circumstances, may not be able to show that he can perform his role as a Commissioner without creating an unacceptable risk to the safety of staff of the Commission or to the general public. On the other hand, a conviction for certain kinds of offences, once the particular circumstances are examined, may not be incompatible with the proper discharge of a Commissioner's functions, notwithstanding that the candidate was sentenced to a term of imprisonment. 63 I do not think that any particular difficulty is presented by the fact that s 31(2) of the ATSIC Act covers a potentially wide range of offences. The fate of each application will depend on a careful evaluation of the particular facts, including the nature and circumstances of the offence, and an assessment of the risks posed by the applicant's appointment to the Commission. In discharging its protective functions the Court will need to consider the interests of the Commission, of the communities intended to be served by the Commission (not merely the candidate's own community) and of the general public. 64 As I have explained, the structure of the legislation is such that an application under s 31(3)(c) of the ATSIC Act will be made after a zone election but before the zone representatives' appointment to the Commission. In the present case, the application was made to the Court after the applicant had been elected as a zone representative by members of the Regional Council. The primary Judge was clearly uncomfortable with what he saw as the "political" judgment required of the Court in these circumstances. But the Court is not required to choose between the merits of competing candidates for election as a zone representative, any more than the High Court, sitting as the Court of Disputed Returns, has to assess the virtues of competing candidates for election to Parliament. (As to the courts' historical jurisdiction over disputed electoral returns, see Australian Law Reform Commission, The Judicial Power of the Commonwealth (Discussion Paper 64, 2000), pars 2.63 ff.) Indeed, it is not the Court that prevents a candidate chosen by the electors from taking up his or her position as a Commissioner. That consequence flows from the grounds laid down by Parliament in the ATSIC Act for the disqualification of a candidate. In any event, as Sue v Hill demonstrates, there is nothing unusual in a Court making a decision that effectively prevents a candidate chosen by electors taking up his or her elective post. 65 Given that the Court is to exercise a protective function in exercising the power conferred by s 31(3)(c) of the ATSIC Act, the fact that a candidate has been elected by members of a Regional Council is likely to be of limited significance in determining the outcome of the candidate's application for relief against disqualification. If the Court were satisfied by evidence that the electors were fully aware of the conviction and the circumstances of the offence (as was said to have occurred on the present case), the applicant would still need to demonstrate that, despite the conviction, he or she is able to discharge adequately the statutory functions of a Commissioner. If the Court were not satisfied that the electors were aware of the conviction and the circumstances of the offence, either because they had not been told or because the relevant events post-dated the election, the applicant would not have the advantage of the informed endorsement of the electors. In either event, the Court would not be concerned to choose between the merits of competing candidates. Nor would it have to make judgments on "political" grounds or by choosing between different means of implementing the objectives of the ATSIC Act. 66 The ultimate question in any application brought pursuant to s 31(3)(c) of the ATSIC Act is whether, in the circumstances, the Court is satisfied that, notwithstanding the applicant's conviction and sentence, he or she can be expected to discharge the statutory responsibilities of a Commissioner. This seems to me a task that can properly be entrusted to a Chapter III court.

absence of a contradictor 67 I do not think that the fact that the ATSIC Act makes no specific provision for a contradictor to oppose a candidate's application for relief from disqualification detracts from this conclusion. There are, of course, many examples of courts making orders on the basis of ex parte applications. More importantly, a court exercising the powers conferred by s 31(3)(c) can be expected to act in accordance with the judicial process and to ensure that notice of the application is given to all those who might have a legitimate interest in its outcome. Precisely this course was adopted by the primary Judge in the present case. Notice was given to the Minister and to the members of the two relevant Regional Councils, presumably including those candidates who were unsuccessful in the zone election. 68 Drummond J's judgment shows that the legislation is far from clear as to the consequences of a zone representative being disqualified from appointment as a Commissioner. Whatever the correct construction of the legislation on that issue, I see no reason to doubt that a member of a Regional Council would have standing to oppose an application by the elected zone representative for a declaration pursuant to s 31(3)(c). If validly appointed to the Commission, the elected representative is to represent the zone: s 27(1)(b). I would have thought that the interest of a member of a Regional Council in not being represented on the Commission by a convicted person who is prima facie disqualified from appointment would be sufficient to give that member standing to oppose an application for a declaration. I also think it strongly arguable that the Minister, who is empowered to give general directions to the Commission (s 12(1)), has a sufficient interest in the composition of the Commission to oppose any such application. The question of standing must be resolved having regard to the objects and structure of the ATSIC Act: see Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250, at 280, per Gummow J. 69 It is true that none of the persons served with notice of the application chose to adopt the role of a contradictor in the proceedings. But even if legislation provides for notice of an application to be given to a particular body (see, for example, Corporations Law, s 206G(2), requiring a disqualified person applying for leave to manage a corporation to give notice to the Australian Securities and Investment Commission), that body might choose not to oppose the application. In such a situation, as in the present case, the court may then have no choice but to determine the application without the benefit of a contradictor. The absence of an active contradictor is not incompatible with the exercise of the judicial power of the Commonwealth. 70 I should add that nothing in the ATSIC Act empowers the Court to act of its own motion in relation to relieving a convicted person from the disqualification imposed by s 31(2) of the ATSIC Act. The legislation is therefore different from that considered in The Queen v Spicer; Ex parte Australian Builders' Labourers' Federation, where Dixon CJ considered (at 289) that the fact that the Court was empowered to disallow rules of an organisation of its own motion told "rather strongly against the view that it [was] intended to exercise part of the judicial power of the Commonwealth".

prospective effect of the declaration 71 Drummond J has pointed out that the better construction of s 31(3)(c) of the ATSIC Act is that any declaration made by the Court pursuant to that provision operates prospectively. In my view, this characteristic of the legislation does not, either alone or in combination with the other factors to which I have referred, result in the conferral of non-judicial power in the Court. As s 206G of the Corporations Law and s 231 of the Industrial Relations Act demonstrate, it is not unusual for courts to be given power to make orders prospectively relieving a person from the consequences of a statutory prohibition. The legislative history of s 31(3)(c) shows that it was enacted with the forerunners of these provisions in mind.

conclusion 72 For these reasons, s 31(3)(c) of the ATSIC Act can and should be read in a manner that conforms to the requirements of the exercise of judicial power by a Chapter III court. To take this course, in my view, involves no threat to civil liberty, nor to the perceived legitimacy or standing of federal courts. 73 It follows that neither s 31(3)(c) nor s 31(4) of the ATSIC Act confers non-judicial power on the Federal Court. Neither provision is invalid. I think that the appropriate course is that the proceedings should be remitted to the primary Judge to consider the merits of the application for a declaration pursuant to s 31(3)(c). I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: THE MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS

KIEFEL J: 74 Section 27 of the Aboriginal and Torres Strait Islander Commission Act 1989 ("the Act") provides that the Commission is constituted by nineteen members, seventeen of whom are to be the persons elected by members of the Regional Councils in a zone, to represent the zone. Those members, plus the other two, are then appointed by the Minister (subsection (2)). Section 31 provides the qualifications for appointment as a Commissioner: "(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)." 75 Mr Yanner ("the applicant") was a member of the Mt Isa Regional Council. On 14 December 1999 he was elected as a representative for the Queensland (Far North West) zone by the combined votes of the Regional Councils in that zone. He was then able to be appointed a Commissioner, subject to the provisions of s 31 of the Act. The applicant had been convicted on 30 July 1999 in the District Court at Mt Isa, on two counts of wilful damage and four counts of assault occasioning bodily harm with a circumstance of aggravation, namely that they were committed in company. The orders then made by a District Court Judge, for probation and community service to be performed, were set aside on appeal to the Court of Appeal of the Supreme Court of Queensland and in lieu the applicant was sentenced to imprisonment for eighteen months, with that sentence suspended for a period of four years. From that time, 10 December 1999, he was not qualified to be appointed as a Commissioner. Shortly afterwards the applicant applied to the Court for an order pursuant to s 31(3)(c) of the Act declaring that, in spite of his conviction, he ought not be disqualified from being appointed Commissioner. At the first adjourned hearing of the application Dowsett J expressed concern as to whether the jurisdiction given by s 31(4) of the Act was an exercise of judicial power within the meaning of ss 71, 76 and 77 of The Constitution (Cth). His Honour heard argument from the applicant, the Minister for Aboriginal and Torres Strait Islander Affairs ("the Minister") and the Attorney-General for the Commonwealth, to whom a notice had been given. Each of the parties' arguments supported the constitutional validity of the provisions in question, and that position was maintained on the appeal. His Honour held that the provisions did not confer upon the Court any part of the judicial power of the Commonwealth.

the act 76 Section 3 of the Act provides: "The objects of this Act are, in recognition of the past dispossession and dispersal of the Aboriginal and Torres Strait Islander peoples and their present disadvantaged position in Australian society: (a) to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them; (b) to promote the development of self-management and self-sufficiency among Aboriginal persons and Torres Strait Islanders; (c) to further the economic, social and cultural development of Aboriginal persons and Torres Strait Islanders; and (d) to ensure co-ordination in the formulation and implementation of policies affecting Aboriginal persons and Torres Strait Islanders by the Commonwealth, State, Territory and local governments, without detracting from the responsibilities of State, Territory and local governments to provide services to their Aboriginal and Torres Strait Islander residents." 77 These objects reflect the matters contained in the preamble, one of which recognises the need to establish structures for the representation of the Aboriginal and Torres Strait Islander peoples. 78 As his Honour noted, the explanatory memorandum concerning the Act stated that the Commission was to supersede the Department of Aboriginal Affairs and the Aboriginal Development Commission. Section 8 of the Act provides that the Prime Minister may confer a departmental function on the Commission. The Commission is obliged to perform its functions and exercise its powers in accordance with any general directions as are given by the relevant Minister, with some qualifications (s 12). The functions of the Commission, in addition to those which may be expressly conferred upon it, principally involve it in the development of policies and programs for Aboriginal persons and Torres Strait Islanders; advising and acting with communities at various levels; advising the Minister; and protecting cultural matter (s 7). The Commission has power to negotiate and co-operate with Commonwealth, State, Territory and local government bodies to enter into agreements for loans and guarantees, to act as trustees of property, and to subscribe to shares. 79 Section 31, set out above, deals with the qualification of a zone representative to be a Commissioner. A zone representative is elected from amongst the members of the Regional Councils by the Regional Councils included in the zone: s 131(1). Section 102 concerns the qualification of a person to stand for election to a Regional Council. Subsection (1) lists the factors which may result in the disqualification. They include a sentence for the same term as that referred to in s 31: "102(1) A person is not qualified to stand for election, or to be elected, as a member for a Regional Council ward if: (a) the person is not entitled to vote at the Regional Council ward election concerned; (b) the person does not live in the ward; (c) the person is a member of the staff of, or a consultant to, the Commission or the TSRA; (d) subject to subsection (2), the person has been convicted of an offence against a Commonwealth, State or Territory law and sentenced to imprisonment for one year or longer; (e) subject to subsection (2), the person has been convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced to imprisonment for 3 months or longer; (f) the person is bankrupt; or (g) there is in operation a composition, deed of arrangement or deed of assignment with the person's creditors under the law relating to bankruptcy." 80 Subsection 102(2)(c) also provides that a person is not disqualified by par (d) or (e) if the Federal Court declares they ought not to be. 81 Section 122 (1)(a) provides that where the Commission is satisfied that, since becoming a member of a Regional Council, a person is convicted of an offence carrying the sentence here relevant, it is to declare that to be the case. Pursuant to subs (2) that person ceases to be a member of the Council on the date of the declaration. Whilst that process could have been undertaken in this case, it was not. His Honour was told that the Commission had not acted in that way because the applicant's conviction preceded the Regional Council election and the higher sentence of imprisonment was imposed, after the election, with the result that s 122 did not come into operation. His Honour did not express necessary agreement with that interpretation, but the matter proceeded upon the basis that the applicant was, at all material times, a member of the Mt Isa Regional Council. 82 The Commission may suspend and remove a Regional Councillor from office on the grounds of misbehaviour or physical or mental incapacity: s 122A. The process involved is similar to that undertaken by the Minister in terminating the appointment of a Commissioner under s 40, save that no grounds for mandatory removal are provided. 83 The Minister may suspend a Commissioner from office because of misbehaviour or physical or mental incapacity, after giving notice to that person to show cause why they should not be suspended (s 40(1)). Misbehaviour includes knowing participation, on the part of the Commissioner, in a contravention of a lawful direction given by the Minister to the Commission (s 40(9)). Termination of the appointment may follow after a statement prepared by the Minister has been laid before a House of the Parliament for the requisite period. The Minister may also terminate the appointment if a person ceases to be elected to a Regional Council or Regional Authority. If the grounds listed in s 40(7) are present, the Minister is obliged to terminate the appointment. They include a sentence to imprisonment for one year or more. Subs (7) provides: "If a Commissioner: (a) is convicted of an offence against a Commonwealth, State or Territory law and sentenced to imprisonment for one year or longer; (b) is convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced to imprisonment for 3 months or longer; (c) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any period of 12 months; or (d) fails, without reasonable excuse, to comply with section 21 of the Commonwealth Authorities and Companies Act 1997; the Minister shall terminate the appointment of that Commissioner." 84 Thereafter the Minister must lay before each House of Parliament a statement identifying the Commissioner, stating that the appointment has been terminated and setting out the ground for the termination (s 40(8)). 85 It is apparent from the objects of the Act and the duties and powers of the Commission that a Commissioner will take part in some financial and business dealings of the Commission. A Commissioner's principal role would appear to be concerned with the making of policies and their implementation and co-ordination in conjunction with, and at times at the direction of, the Minister and his department. The role requires responsibilities to both the Minister and the Department and to the Aboriginal and Torres Strait Islander community, whom the Commissioner represents. 86 So far as concerns the qualification or potential disqualification to the position of Regional Councillor or Commissioner, the scheme of the Act is that a person convicted of any offence and sentenced to imprisonment for one year or more or, in the case of an offence involving dishonesty, three months or longer, is not able to stand for election to a Regional Council, save by order of the Court. That is not, however, necessary if specified periods of time have elapsed since conviction or release from prison. Once elected to a Council, if the Councillor is convicted and sentenced to the abovementioned terms they cannot continue to be a Councillor. All that is required in this connexion is a declaration as to the fact of conviction by the Council. The Court is not involved in this process. If a person remains elected as a Regional Councillor and is convicted and sentenced to those terms, subject to the same provision for the lapse of time as earlier referred to, they cannot be appointed as Commissioner by the Minister, unless the Court declares otherwise. Section 31 contemplates that a person has been elected by the Regional Council and is otherwise entitled to appointment. If, following their appointment as a Commissioner, the person is convicted and sentenced for the same periods, or if they are absent from duty or fail to comply with the statutory disclosure provisions, the Minister is obliged to terminate their appointment. 87 The scheme of the Act, so far as concerns offences involving dishonesty or offences carrying a substantial term of imprisonment is not entirely clear. If conviction and sentence occurs whilst in office, a person is disentitled from continuing in that position by force of the statute but with a requirement that Parliament be informed of these cases, as with cases involving removal for misconduct. The Court's involvement is at the point of qualification of a candidate for election to Regional Council or of a Councillor elected by the Council for appointment as a Commissioner.

the primary judge's reasoning 88 From the case law concerning judicial power, which his Honour reviewed, his Honour determined that there were a number of factors which pointed to the power in question being non-judicial. Of most importance was the absence of any appropriate and objective criteria by which the Court could determine whether the conviction and sentence should not operate to disqualify a person. In that regard, no assistance could be gained from the preamble or the objects of the Act in the exercise of what was a very general discretion. His Honour considered the role of the Commissioners, who were both representatives and advisers to government, and whether tests such as those requiring a person to be of good character, or a fit and proper person to hold office or profession, were suitable and his Honour determined they were not. His Honour also identified a problem with a perception of political involvement on the part of the Court. It is this aspect of the decision upon which much of the submissions on the appeal focussed. The Commission was effectively a department of government, the question for the Court would involve the structure of a body set up by legislation to carry out functions in respect of which the Parliament is authorised to legislate. Public confidence in the independence of the judiciary might be undermined.

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.

conclusion and summary 114 The jurisdiction given to the Court by s 31(4) of the Aboriginal & Torres Strait Islander Commission Act 1989 (Cth) is not one which permits the exercise of a judicial function. The particular difficulty arises under the Act because of the number of disparate roles of a Commissioner. It is not possible to limit an assessment to their role in business and management, an assessment which might be undertaken objectively. The lack of specification of potentially disqualifying offences, together with an uncertainty as to the extent to which standing in the community is to be weighed if applying a test involving personal qualifications, means that there is no discernible test or criteria which might be applied by the Court in the exercise of a judicial function. It is possible, were the matter not left at large and some criteria provided, that the Court might be able to exercise its proper function, but that would require decisions such as one limiting the operation of disqualification to particular aspects of the role of the Commissioner; identifying what are the disqualifying offences; specifying whether the person's standing as an elected representative in the community was to be taken into account in connexion with any test as to personal qualities; and whether such a test was intended. These are decisions which are not appropriate to a Court. 115 The appeal should be dismissed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel J.

Counsel for the Appellant: Mr D F Jackson QC with Mr DA Kelly

Solicitor for the Appellant: National Aboriginal and Torres Strait Islanders Legal Services Secretariat Limited

Counsel for the Second Respondent: Mr D Bennett QC Solicitor-General with Ms A Philippides SC and Mr J Stellios

Solicitor for the Second Respondent: Australian Government Solicitor

Date of Hearing: 9 November 2000

Date of Judgment: 5 February 2001