Aboriginal Development Commission v Hand, G.L

[1988] FCA 262

I

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CATCHWORDS

ADMINISTRATIVE L A W - Aboriginal Development Commission Act
1980 (Cth) - whether Directions given by the Minister pursuant
to s.11 valid - proposed reorganisation of the Department of
Aboriginal Affairs and Commission - opposition by members of
the CorPmission - statutory provisions empowering Minister to
give directions.
PROCEDURE - determination of separate question of law

pursuant to Order 29, Rule 2 of the Federal Court Rules.

Federal Court Rules, Order 29, Rule 2

Aboriginal Development Commission Act 1980 (Cth

(l)(C) and (d), 11, 16(!~)

ABORIGINAL DEVELOPMENT COMMISSION AND OTHERS. V.

GERARD LBSLIE RAND, THE MINISTER OF STATE FOR ABORIGINAL AFFAIRS

No. G954 of 1988

Davies J.
19 May 1988

Sydney

. .	IN TEE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) No. G954 of 1988

- )

GENERAL DIVISION )

BETWEEN: ABORIGINAL DEVELOPMENT

COMMISSION

First Applicant

Second Applicants

OSSIE BENJAMIN CRUSE

Third Applicant

- AND : GERARD LESLIE HAND, THE
MINISTER OF STATE FOR
ABORIGINAL AFFAIRS

Firrt Respondent

Second Respondents

C O R M :	Davies J.
m	19 nay 1988
PLACE :	Bydney

MINUTES OF ORDER

THE COURT ANSWERS tho question set aside	for separate
aeternination purruant to Order	29 Rule 2 of the Federal Court
Ruler as fol1owr:-
uertion:	Whethor the Directionr given by the Minister for

h or g nal Affairr on 27 April 1988 were and are v lid.

mswe r :	The Directionr are to be read and understood subject
m l ( 2 )	of tho Aboriginal Devolopnent Commission Act 1980
(Cth).	As ro read, the Directionr were and are valid.

- NOTE : Settlement and entry of ordorr la dealt with in

Order 36 of the Federal Court Ruler.

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IN TEE ?EDEML COURT OF AUSTRALIA	)
1

NEW	SOUTH WALES DISTRICT REGISTRY	)	NO. G954 of 1988
)

GENERAL DIVISION 1

BETWEEN :  ABORIGINAL DEVELOPMENT
COMMISSION

First Applicant

Second Applicants

OSSIE BENJAMIN CRUSE

Third Applicant

AND :  - GERARD LESLIE HAND, THE
ABORIGINAL AFFAIRS

First Respondent

AND :  -

Second Respondents

CORM:	Davier J.
-	DATE :	May  19 88
PLACE:	Sydney

RmSONS ?OR JUDGMENT

On 2 1 April 1988, the Minister for Aboriginal Affairs,

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.	The Honourable Gerard Leslie Hand, gave the following Directions
to the Aboriginal Development Commission pursuant to s.11 of the
Aboriginal Development Commission Act 1980 (Cth)("the Act"):-

"1. The Commission shall co-operate with the Minister

for Aboriginal Affairs, the Department of Aboriginal

Affairs and all other bodies in respect of which the

Minister har Ministerial responsibility in relation to
the proposed reorganiration of the Department and other

bodies in respect of which the Mini6teK has Ministerial

rerponsibility required to facilitate the formation	of
the propored Aboriginal and Torres Strait Islander Commission.
2. The Commission shall provide to the Minister, the Secretary of the Department or the Chairman	of the

Aboriginal and Torres Strait Islander Commission Task
Force such information as they may reasonably require
from the Commission to facilitate the formation of the
Aboriginal and Torres Strait Islander Commission.

3.   The Commission shall be represented by persons each

of whom shall be either a member of the Commission or such senior officer or officers of the Commission as shall be appropriate at meetings called from time to

timo b the Minister, the Secretary, tho Chairman of the

Aborig X nal and Torror Strait Irlandor Commission Task Force or by persons authorised in writing by any of them

to call such meetings, being meetings the purpose of

which is to discuss, at such place as is, in the particular case, specified by the Minister, the Secretary, the Chairman or authorised person, the

reorganiration of tho Department and other bodies	in
rorpect of which the Minister has Ministerial re8pOn8ibility required for the formation of the
propored Aboriginal and	Torres Strait Islander
C O u i 8 8 i O n . "

On 10 nay 1988, the Commission resolved "that the

Directions are invalid" and confirmed "their current position of not cooporating in the implementation of ATSIC [the

Aboriginal and Torres Strait Islander Commission]."

On 11 nay 1988, the Chairman of the Commission wrote

to the Ministor a# follows:-

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3.

. "On a number of occasions the Commission has provided you

with its views on your proposal as outlined	in
'Foundations for the Future'.	On two occasions the
Commission provided you with formal advice under	s.8(f)

of the ADC Act. In essence this advice was that your proposal would not further the social and economic

development of Aboriginals and Commissioners put forward

an option which they believe would achieve an

improvement in this regard.

At a Commisoion moeting of 10 May, Commissioners

considored your directions under 6.11 of the ADC Act

which you tabled in Parliament on 27 April 1988. On the
basis of legal advice, the Commissioners unanimously
resolved to proceed in seeking a declaration from the
Federal Court to dotermine the validity of your

directions. The Commissioners further resolved to

maintain their current position with	regard to
opporition to ATSIC	and that ADC staff will not

participate in ATSIC Task Force activities until the

validity of 0.11 directions is determined by the Court."

On the following day, 12 May 1988, the Minister, pursuant

to s.16(5) of the Act terminated the appointments	of the second
applicants, who had boon appointed under 6.16 to act as members	of
tho Commission and	of tho third applicant who had been appointed

to act as Doputy Chairman of the Commiseion.

Procoodings wore thon initiated in this Court by the

Aboriginal Developront Commission, in which the second and third applicant6 sub8oguently joined, for declarations that the

Directions givon by the Minister on 27 April 1988 were invalid nd

for orders setting aside the decision to terminate the

appointments of the second and third applicants. On its

transpiring that the Minister, on Friday, 13 May 1988, had

appointed the rocond respondents to act as members of the

Aboriginal DevelopBent Commission, those persons were joined as

rerpondonts and an order was sought setting aside their appointments.

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. When the matter came before the Court on 16 May 1988, D.J. tliggins Q.C. and Mr R.G. Forster of counsel appeared for the M r

Commission and f o r the second and third applicants. Mr A.M.

Gleeson Q.C., and M i s s R.M. Henderson of counsel appeared for the

Minister, M r T. Robertson of counsel appeared for the second respondents but subrequently announced that his clients were

prepared to abide the order of the Court	and sought leave to
withdraw. That leave	was granted.

As the matter was an urgent one, it was ordered,

pursuant to Order 29, Rule	2 of the Federal Court Rules, that the
issue whether the Directions given	by the Minister on 27 April
1988 wore and are valid	be determined separately from the other
issues in the application and that that question	be heard and

determined forthwith. Theae reasons for decision deal solely

with that isrue.

By way of background, I should mention that the

Aboriginal Development Commirrion war established under	the Act
to further the oconomic and aocial development	of Aboriginals

and, in particular, to assist individuals and groups of

Aboriginal. to acquire land and to engage in business and also to

assist Aboriginalr to obtain finance for housing and other

personal needa. The funding of the Commission comes primarily from the Commonwealth Government. The Commission comprises ten members, all of whom are Aboriginals. In the Act a reference to

the word "Aboriginal" is read as a reference to a member of the
Aboriginal raco of Australia and also to any person who is a

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. descendant of an indigenous inhabitant of the Torres Strait Islands.

Recently, the Minister for Aboriginal Affairs has

developed a proposal for the reorganisation of his department, the Department of Aboriginal Affairs, and for the creation of a new body, the Aboriginal and Torres Strait Islander Commission,

which prerumably will take over all or some of the functions prerently performed by tho Aboriginal Development Commission.

The members of the Commisrion are opposed to the proposal for

reorganisation, believing it not to be in the best interests of

Aboriginal..	They have declined so far to co-operate in the
reorganisation. That lack of co-operation led to the issue	of
the Direction. which I have set out.

Relevant provirionr of the Act are as	follows:-
"3.	The purpore of this Act is to further the economic
and rocial development of people of the Aboriginal	race
of Aurtralia and people who are descendants of
indigenou8 inhabitantr of the Torres Strait Islands	and,
in particular, (as a recognition of the past

dirpo8merrion and dirperral of such people) to establish

a Ca ita1 Account with the object of promoting their

deve P oprent, relf-management and self-sufficiency.

...

8.      The functionr of tho Commission are, subject to and

in accordance with this Act, to further the economic	and
rocial development of Aboriginals	and, in particular,
but without limiting the generality of the foregoing	-
( a )	to arrirt communities and groups of Aboriginals to acquire land;
(b)	to arrirt Aboriginals to engage in business enterprirer;
(c)	to arrirt Aboriginals to obtain finance for
houring and for other personal needs, and to

provide ruch finance;

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to assist in the training of Aboriginals	in
relation to matters related to the functions of	the

Commission;
to administer and control the Capital Account;

to give advice and make recommendations to the

Minister with respect to the furtherance of the

economic and social development of Aboriginals; and

such other functions in connection with the
furtherance of the economic and social development
of Aboriginals as the Minister determines by notice

in writing given to the Commission.

9.(1) The Commission has power to do all things

necessary or convenient to be done for or in connection

with the performance of its functions and, in

particular, but without limiting the generality of the

foregoing, has power -

...

(c)	to co-oporate with States, the Northern Territory and local government bodies, and with other persons and organizations concerned with Aboriginal development;
( d )	to collect, or arrange for the collection of,
information relating to the performance of the

functions of the Commission; and

...
11.(1) Tho Corrission shall perform its functions	and

exerciso its powors in accordance with such general

diroctions as are givon to	it by the Minister in
writing.

( 2 ) Sub-section (1) door not empower the Minister to

give directions relating to the content of any advice,

information or recommendation that may be given by the
Corrission to a Minister, Department or authority of the

Commonwealth or of a State or Territory.

(3) Subject to sub-section ( 4 1 , the Minister shall

causo a copy of any direction given	by him under
sub-section (1) to be laid before each House	of the

Parliamont within 15 sitting days of that House after

that direction was	given.
( 4 )	A copy of a direction laid before the Parliament in

accordance with sub-section (3) shall not disclose any

mattors known to the Commirsion to be held sacred by

Aboriginals or by a particular community or group of
Aboriginals."

l .

It may almo be noted that many specific powers are conferred upon

the Minister by the Act. I need not set them out.

Increasingly there are found in legislation of the

Federal Parliamont inmtances whereby Hinisters are empowered to

give directionm with which members of their departments or bodies

under the aegir of their authority are bound to comply. Somewhat unhappily, the provimions for the giving of such directions vary in their form and content.

In rome rtatutes, the Minister is conferred an

unfettered dircretion to give directions.	For example, 6 . 6 of
the rirherior Act 1952	provides:-

"6. The Secretary or his delegate or a delegate of the

ninirter im, in the exercire of	hi. power. and the
porforranco of hir functionr under this Act, subject	to
the diroctionr of the Minister."

There aro many liko provision. to be found in the statutes. Such

a provirion enabler the Minimtor to give not only directions with

rerpect to mattorr of policy or by way of guidelines, but also

diroctionr with rorpoct to particular casea or problems. Under

much a provirion, the Minister may direct the decision to	be made
in a particular care.

Such a power ir found in s.29(1) of the Trade Practices

- 1974 but Act ir thoro limited with rerpect to decisions in

individual camom. The section reads:-

"29. (1) Tho ninimter may -

(a)	give directions as to matters to be given special consideration by the Commission in determining applications for authorizations or
in making decisions for the purposes of paragraph 93(3)(a) or (b); and
(b)	give directions to the Commission in connexion
with the performance of its functions or the
exercise of its powers under this Act, not

being directions relating to the performance of its functions or the exercise of its powers

under section 655, 65K, 65M or 65N or Part VI1

in relation to individual cases,

and the Commission shall comply with any directlons	so
given. "
On occasion, the word "directions"	is not used but the

word "guidelines" is found.	Section 124H(1) of the Health
Insurance Act 1973	provides:-

"1248. (1) The Minister may, by instrument in writing,

make guideliner to be applied by Committees with respect

to tho making of rolovant doterminations."

In many Federal statutes the term "general directions"

appears. The adjective "general" indicates that the direction must be one which is not dirocted merely to a particular case	or
to a particular docision but is one to be applied generally.	In
thir rospoct, a general diroction ir similar to a binding

guidolino. It set. the structure of activity or decision-making.

However, both a guideline and a general direction may	be more or
less spocific, having regard to the terms which	it uses and the
concept which it conveys.

Section ll(1) of the Act empowers the Minister to give

general directions to tho Commirrion. The oub-section provides

that the commission shall perform its functions and exercise its

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powers in accordance with such general directions. The

sub-section adopts words of its own. Rather than expressing the

power of the Minister to give directions and infer the obligation
to give effect to such directions, the section implies the power

of the Minister to give directions and expresses the obligation

of the Commission to give effect thereto. Section 11(1) is an

ample provision and reflects the point that, though the

Conrission is a statutory authority of the Commonwealth, the

Minister has overall control of and responsibility for it.

Section 11(2) expressly provides that the section does not empower the Minister to give directions relating to the

content of any advice, information	or recommendation given by it
to a Minister, Department	or authority of the Commonwealth or of
a State or Territory and to this extent qualifies	and limits the
power conferred by s.ll(1).	The words "advice, information or
recommendation" are not technical or formal words.	They speak in
ordinary parlance and encompass the informal communication	of
views held by the Commission.

As to 8 . 8 of the Act, much of the argument before the

Court was directed to the question who	had the power to determine
what action would further the economic and social development	of
Aborigines.

In the absence of a notice in writing given pursuant to

s.8(g) or a direction given pursuant to	11.11, that question is
solely one for the Commission, provided that its actions are	not
so unreasonable as to infringe the Wednosbury principle. See

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10.

Associated Provincial Picture Houses Ltd	v. Wednesbury
Corporation I19481 1 K.B.	223, and ss.5(2)(g) and 6 ( 2 ) ( g ) of the
Adminirtrative Decisions (Judicial Review) Act 1977 (Cth).	But

the matter is not left entirely to the Commission, for 6 . 8 is

subject to the remainder of the Act including 6.11. The Minister

may, under s.B(g), give a notice in writing to the Commission as to a function which the Minister considers will further the economic and social development of Aborigines and under 6.11 he

may give general directions as to the performance	of that or any
other function.	The Commission is obliged to comply with any
general direction given	by the Minister under 6.11.

Thus, when the Commission is the decision-maker, it is

subject to the Act, to any notice given by the Minister under

s .8 (g ) and to any general direction given by the Minister under

s.ll(1) but otherriso it may and should form its own judgment as to what course will further the economic and social development

of Aboriginals or will otherwise further the aims set out	in
paras.	(a) and (f) of s.8 .

On the other hand, in deciding to give a notice under

s.8(g) and in formulating a general direction under s.ll(l) it is

for the Hinister, being the decision-maker, to form hie view as
to what course will further the economic and social development

of Aboriginals, or will otherwise further the objects of the Act.

In tho present case, it was submitted by counsel for the

applicants that no function of co-operation	in the reorganisation
of the Department of Aboriginal Affairs and	in the establishment

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11.

of the Aboriginal and Torres Strait Islander Commission	had been
conferred upon the Commission pursuant to	s.8(g) and that, as the

Commission did not consider the reorganisation and the

establishment of the new Commission to be a step such as to

promote the welfare of the Aborigines, co-operation in that

matter was not a function of the Commission.Mr Gleeson
submitted, to the contrary, that the performance of the function

had been directed under s.ll and that it mattered not whether the

ninister gave a notice under	s.8(g) or general direction under
6.11.

I have found it unnecessary to resolve this issue.

The Commission has certain powers and they include the

powera specified in paras 9(l)(c) and (d) which I have set out

above, namely to co-oporate with persona and organiaations concerned with Aboriginal development and to collect and diaseainate information relating to the performance of the

functions of the Commission. The power to collect information

impliedly confers the power to uae and distribute that

information in an appropriate way.

nr Gleoaon Submitted that the Directions given by the

Minister related to the exercise of these powers.	I agree with
that aubmission.

Direction 2 is a clear case. The Commission is

empowered to co-operate with other persons and bodies concerned

with Aboriginal development. It is empowered to collect and

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12.

disseminate information. Direction 2 merely directs the

Commission to provide information reasonably required	by the
Minister, his Department and bodies for which he has responsibility. All the persons and bodies nominated in
Direction 2 are personr	or bodies concerned with Aboriginal

development. The provision of information to them as reasonably

roquested is a form of co-operation with	them.
Direction 2 is therefore a direction as to how the Commission should exercise powers which are conferred upon	it by
6 . 9 .	The Commission is obliged by 6.11 to exercise its powers in

accordance with such a direction.

Direction 2 is a general direction for it is not

directed to a decision in a particular case or even to the

content of viewa vhich may b . expressed by the Commission or by

members or staff of the Commission.	The Direction is no more
than a direction as to a course	of activity which is empowered by

r.9. The Direction gives more detail and specificity to the general power, but that is of the nature of a general direction.

A general direction may require the Commission to undertake an

activity of a specified character.	What a general direction may
not do ir direct its attention to a specific case arising	for
decirion bofore the Commission.

The abovo comments apply with equal force to Directions

1 and 3. Howover, in respect of these, there is the further

question whethor the Directions infringe the limitation imposed
by s.11(2), namely, as to whother they direct the Commission as

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13.

to the content of any advice, information or recommendation that

may b . given by the Commirrion to the Minister or a Department or

authority of the Commonwealth.

Thoro is a difficulty with the words appearing at the

end of Direction 1, namely, "required to facilitate the formation of the propored Aboriginal and Torres Strait Islander Commission"

and tha ro~owhat similar words which appear in the end of

Direction 3. If thoro words were to	be read as requiring the
Conrisrion not only to cooperate	in the reorganisation but

pO8itiVely to facilitate and promote the reorganisation, they

might breach the provisions of s.11(2), which preclude the

Minister from giving directions relating to the content of any advice, information or recommendation that the Commission may

givo.	It war ruggortod that the words "and is" should be
inaortod botwoon tho wordr "rorponribility" and "required"	in

Direction 1 and that similar words or words to like effect should

. broad into Direction 3. However, I am ratisfied that the

reading ruggorted by llr Gleoron, namely that the adjective

" r o q u i r ~ d ~ rolator in Direction 1 to the noun "reorganisation" and in Direction 3 to the noun "meetingr", is correct.

80 read, the Directions do not require the Commission to

promote tho reorganisation but merely to cooperate with other
perronr in relation to the reorganisation and to give such

information am may raaronably be required.

Were the porition Otherwise, the Directions would breach

r.ll(2) for tho co-oporation which is directed necessarily would

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14.

involve the Commission, its members and staff in communications

and dircurrion involving the giving of advice and recommendations

to the Minister, his Department and bodies under the aegis	of the
Minister and to officers of those bodies.	The Minister is
expressly prohibited from giving directions as to the content	of
any such advice or tocommondation.	I take that prohibition to

encomparr advice, information or recommendation given by a member

or officer of the Commirrion in his capacity as such.

If in purruance of Directions 1 and 3, members and

officerr of the Coamirrion were to attend meetings or discussions

with rerpect to tho proporod reorganisation, they would, because
of s.ll(2) be ontitled, if arked to express a view, to state the
view of the Commisrion, nancly, that the proposed reorganisation
or n o m arpect theroof war not in tho belt interests of the

Aboriginal couunity.

A liko irruo ariser ar to the effoct of the direction to

co-oporate. Tho word “~~-oporato’, in its strictest sense, means

to work togother to an end or purpose. In my opinion, the

Rinirtor ir not orpoworod to direct the Commission to work in

committoo poritivoly and favourably toward the achievement	of the
proporod reorganiration. The Commission, its members and
officerr aro ontitlod to give such advice	and to make such
reconondationr a# they 6.0	fit.
Howovor, the word wco-operatew is appropriately used a looser senre to encomparr acting	in

in conjunction in a common

activity. In many docirionr in the United States, the

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. requirement of co-opera tion appearing in insurance PO licies has

been held to require of a claimant little more than to give a

truthful account respecting the insured event and such statements

and particulars as may reasonably be required. See, eg., United

States ridelity L Guaranty Co. v. YYycr 60F.2d 856; Coleman v. - New

Amsterdam Casualty Co. 247 N.Y. 271; and Wheeler v. Lumbermen's

Mutual Casualty Co., 5 F. Supp. 193.

The Minister is entitled to require of the Commission, its members and staff co-operation in this sense.	The Minister
is entitled to require of the Commission that	by its members or
staff it will attend such meetings as may	be required to achieve

the proposed reorganisation and that its members and staff will

fully and fairly disclose a11 matters of relevance which may	be
sought of them.	Such a requirement does not go to the content of

any advice or recommendation given by or on behalf of the

Commission, which is a matter for the Commission.

In my opinion, Directions 1 and 3 should be read subject

to the power under which they were given and therefore to read

them in auch manner as to maintain their validity, providing	that
meaning is reasonably open, as in the present case, it is.	To so

read them is merely to read them in context, in the setting in

which they were made.	A s is stated in Broonh Legal Maxims
(naxwell and Son, London, 1884), 6th	Ed. at p.539:-

"... it is an established rule, in construing a statute	that the intention of the law-giver and the meaning of
the law are to be ascertained by viewing the whole and
every part of the Act. One part of a statute must be so
construed by another that the whole may, if possible stand...".

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. & a .

. 1 6 .

. The same principle applies to delegated legislation a d the

exercise of powers. As is stated in Bennion's Statutory

Interpretation (London, Butterworths, 1984). at p.147:-

"The court will assume that the delegate intended to
conform to the rule of primary intention, and will

construe ambiguoua provisions in the instrument

accordingly.	'In other words, the courts will not be
astute to ascribe to	the person by whom the legislation

w8s made an intention	to make ultra vires	provision.'
(8alsburyrs Laws (4th	edn) v01 44 para 1002 n 3. ...	) "

The word "co-operate" in Direction 1 should therefore be read in the looser sense to which I have referred and as not

requiring the members and officers of the Commission, on
attendance at meetings, to put any view or to give any advice,

information or recommendation other than that which is honestly

held and which is supported by the Commission.	Directions 2 and
3 should be read 8ccordingly.	As so read, the Directions are
v8lid.

Tho question will therefore	be answered:-
"The Directions are to	be read and understood subject to

s.ll(2) of the Aboriginal Development Commission Act

1980 (Cth). As so read, the Directions were and are

V8lid. "

I certify that this and the 15

precoding pages 8re a true copy of the Reasons for Judgmont herein of

the Eonour8blo Hr	J W i C e Davies.
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4

U 17.

Counsel for the applicants:	Mr T.J. Higgins Q.C.
with M r R.G. Forster

Solicitors for the applicants: Messrs Kemp Strang h

Chippindall

Counsel for the 1st respondent:  Mr A.M. Gleeson Q . C . with

Miss R.M. Henderson

Counsel for the 2nd respondents: Mr T. Robertson

Solicitor for the 1st	Australian Government
respondent:	Solicitor
Solicitor for the 2nd	W.H. Whyburn and Associates
respondents:
Dates of hearing:	16-17 May 1988

c