Clark v Honourable Amanda Vanstone

Case [2004] FCA 1105

FEDERAL COURT OF AUSTRALIA

Clark v Honourable Amanda Vanstone [2004] FCA 1105

ADMINISTRATIVE LAW – decisions of Minister – to give notice to holder of statutory elected office to show cause why he should not be suspended – to suspend him – whether valid decisions – Minister relied on conviction by County Court for offence of obstructing police, on commission of offence and on conduct in obstructing police – found misbehaviour in terms of determination specifying as misbehaviour a conviction for any offence for which a term of imprisonment may be imposed and in terms of ‘general concept of misbehaviour’ – applicant already suspended in respect of two convictions in Magistrates’ Court – appeal resulted in conviction of one offence – whether power to initiate second suspension process – whether power to suspend based on a conviction could not be exercised until all avenues of appeal exhausted – whether Minister required to take into account all evidence before County Court and make her own findings of fact – meaning of ‘misbehaviour’ – whether power to specify conviction, or finding of guilt without conviction, of any offence for which sentence of imprisonment might be imposed – relevance of impact of conviction, or of conduct, on capacity to continue to hold office – whether failure to take into account a relevant consideration – whether jurisdictional error

STATUTES – delegated legislation – validity – statutory power to specify by determination behaviour to be taken to be ‘misbehaviour’ for the purpose of the Act – specification as misbehaviour of conviction, or finding of guilt, of any offence for which a term of imprisonment may be imposed – whether determination may operate arbitrarily or capriciously by reason of differences in State and Territory laws – greater impact on indigenous than on non-indigenous people – effect of requiring higher standard of behaviour  of office-holders in indigenous organisation than required by legislation in respect of office-holders generally – whether determination racially discriminatory – whether power to make determination should be construed as not authorising racial discrimination – whether determination in excess of power to make it – whether relevant clauses of determination invalid – whether saved by provision that determination is a disallowable instrument – whether saved by fact that power to suspend discretionary – whether determination can be read down – whether determination an instrument

WORDS AND PHRASES – ‘misbehaviour’, ‘instrument’

Judiciary Act 1903 (Cth) s 39B
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 3, 4, 4A, 6, 7, 8, 10, 14, 15, 27, 30, 31A, 31, 33, 34, 38, 38, 40, 44, 46, 53, 55, 56, 75, 76, 77, 77G, 91, 92, 94, 95, 97, 101, 102, 119A, 122, 122A, 123, 123A, 124F, 127, 127C, 127G, 130, 131, 142R, 143L, 143S, 143Y, 144B, 144G, 144P, 144ZN, 147, 155, 157, 165, 191A, 191B, 191D, 191E, 191V, 191X, 192H, 194
Aboriginal and Torres Strait Islander Commission Amendment Act (No 1) 1999 (Cth) Sch 1 item 29
Commonwealth Authorities and Companies Act 1997 (Cth)…

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AGLC
Clark v Honourable Amanda Vanstone [2004] FCA 1105
Case
[2004] FCA 1105
Decision Date

CaseChat Overview and Summary

The case of Clark v Honourable Amanda Vanstone involved a legal challenge by Mr Clark, a Commissioner of the Aboriginal and Torres Strait Islander Commission (ATSIC), against a decision by the Minister, Ms Vanstone, to suspend him from office. The dispute centred around the interpretation and application of section 40 of the Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act) and the Misbehaviour Determination 2002. The primary issue for the court was whether the Minister’s decision to suspend Mr Clark was flawed due to a failure to consider relevant evidence and the appropriate scope of the term 'misbehaviour'.

The court had to determine whether the Minister was required to consider the entire body of evidence before the County Court, and if she was bound to make her own findings on this evidence, especially since she relied on the facts underlying Mr Clark's conviction rather than the conviction itself as constituting misbehaviour. The court analysed the obligation of the decision-maker to take into account relevant considerations as established in Minister for Aboriginal Affairs v Peko-Wallsend Ltd. It concluded that the Minister’s reasons for suspending Mr Clark demonstrated a failure to take into account a relevant consideration, specifically the limitations on the meaning of 'misbehaviour' under the ATSIC Act and the 2002 Misbehaviour Determination. This failure to consider the impact of Mr Clark's conduct on his capacity to hold office constituted a jurisdictional error.

The court found that the Minister’s decision to suspend Mr Clark was invalid due to this jurisdictional error. However, the decision to provide Mr Clark with a notice under section 40(2) of the ATSIC Act was not necessarily flawed, as the section itself does not require the Minister to form a concluded view on the relationship between a conviction and the statutory meaning of 'misbehaviour' before giving the notice.

The court ordered that Mr Clark be granted leave to amend his application, that the Minister's decision to suspend him be quashed, and that the Minister pay Mr Clark’s costs of the proceeding. The application was otherwise dismissed.

Orders

Orders of the court

1. The applicant have leave to amend his application in the form of the further amended

application filed on 3 May 2004.

2. There be an order in the nature of certiorari, removing into this Court the decision of

the respondent, made on 22 January 2004, to suspend the applicant from office as a

Commissioner of the Aboriginal and Torres Strait Islander Commission, for the

purpose of quashing the decision.

3. The decision of the respondent, made on 22 January 2004, to suspend the applicant

from office as a Commissioner of the Aboriginal and Torres Strait Islander

Commission, be quashed.

4. The application be otherwise dismissed.

5. The respondent pay the applicant’s costs of the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The powers given to the Minister by s 40 are intended to be protective of ATSIC, and of the rights of representation of indigenous people. The powers are intended to secure the end that those chosen to represent the interests of indigenous people should continue to be persons of standing and propriety, so that they may have credibility in continuing to represent those interests and the deliberations of the Commission may continue to be respected. Again, it can be accepted that the Minister has no power to proceed to terminate the appointment of a Commissioner on the basis of a conviction on which there is an appeal pending. That is not to say that initiation of the suspension process, and even suspension, is impossible while an appeal is pending. Indeed, the protective nature of the powers in s 40 suggests strongly that there might be circumstances demonstrating a need to remove a Commissioner from the deliberations of the Commission, and from the performance of the Commissioner’s other functions. For example, a conviction for a serious offence might well warrant suspension of the Commissioner from office pending an appeal, even though it might turn out that the conviction is set aside on appeal. The offence might be of so grave a nature that it would give rise to a serious risk of bringing ATSIC into disrepute if the person were to continue to exercise the functions of a Commissioner before the appeal is determined.Failure to take into account the evidence in the County Court Counsel for the applicant argued that, in deciding whether to suspend the applicant, the Minister was required to take into account the whole of the evidence that was before the County Court, and to make her own findings on that evidence, particularly as she chose to rely on the facts underlying the conviction, as distinct from the conviction itself, as constituting misbehaviour. If she did not make her own findings of fact, it was argued, she could not determine whether the applicant’s conduct, as distinct from the fact of his conviction, constituted misbehaviour for the purposes of s 40 of the ATSIC Act. By not doing so, the Minister failed to take into account relevant considerations, so that her decision was affected by jurisdictional error. The classic statement of the obligation of an administrative decision-maker to take into account relevant considerations is found in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. It is clear from that passage that the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account. What factors a decision-maker is bound to consider will be determined by construction of the statute conferring the power. In the absence of an exhaustive express statement of the considerations required to be taken into account, it will be necessary to determine by implication from the subject-matter, scope and purpose of the legislation what the considerations are. Thus, in the present case, it is necessary to look at s 40 of the ATSIC Act, in the context of the whole of the ATSIC Act, to determine whether the Minister was obliged to take into account the circumstances of the offence. It is easy to answer this proposition in the affirmative. If the Minister chooses to consider whether the conduct of a Commissioner, leading to a conviction, as distinct from the fact of the conviction itself, is misbehaviour, she could hardly do so without taking into account the actual conduct. This conclusion is insufficient, however, for the applicant to succeed on this argument.

Decision

Reasons for decision

GRAY J
There is nothing that indicates any awareness on the part of the Minister of the need to consider whether a finding of misbehaviour, other than by application of the 2002 Misbehaviour Determination, could be made on any basis other than that she was entitled to disprove of the applicant’s conduct. I am therefore of the view that, in deciding whether to suspend the applicant on the ground of the ‘general concept of misbehaviour’, the Minister’s reasons demonstrate that she failed to take into account the same relevant consideration as in the case of misbehaviour as defined by cl 5(1)(k) of the 2002 Misbehaviour Determination. In each case, for the reasons that I have given above, s 40(1) of the ATSIC Act required that the Minister take into account as misbehaviour only such behaviour as bore upon the capacity of the applicant to continue to hold the office of Commissioner. By failing to take this into account, the Minister failed to take into account a relevant consideration. The effect on the two decisions It is now well established that a failure to take into account a relevant consideration, of a kind that is required to be taken into account by the nature of the relevant legislative scheme, in a way which affects the exercise of a decision-making power is to be regarded as a jurisdictional error. See Craig v State of South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed. There can be no doubt that the failure to consider the limitations on the meaning of ‘misbehaviour’ in the context of the ATSIC Act, and on cl 5(1)(k) of the 2002 Misbehaviour Determination, which led to the failure to consider the effect of the applicant’s conduct on his capacity to continue to hold the office of Commissioner, affected the exercise of the power to suspend in the applicant’s case. Indeed, on the face of it, it is difficult to see how the Minister could reasonably have taken the view that the applicant’s conviction for obstructing police, or his conduct leading to that conviction, could have affected his capacity to represent the interests of indigenous people or to be engaged in the variety of administrative, managerial and financial tasks required of a Commissioner. Only by assuming that misbehaviour had been established and by treating those considerations as relevant only to the question whether a suspension decision ought to be made could the Minister have arrived at the conclusion that she reached. It follows from this that the suspension decision must be set aside. It does not necessarily follow that the decision to provide the applicant with a notice pursuant to s 40(2) of the ATSIC Act was also flawed. The provisions of s 40 do not contain any indication of any particular jurisdictional fact upon which a decision to give a notice under s 40(2) should hinge. Section 40(2) itself is in the form of a negative provision, constraining the exercise of the power to suspend under s 40(1) unless the notice has first been given. There is no reason, therefore, to suppose that the Minister is obliged to form any sort of concluded view as to the relationship between a conviction, or the conduct leading to it, and the statutory meaning of ‘misbehaviour’ or the restricted extent of cl 5(1)(k) of the 2002 Misbehaviour Determination, before giving the notice. At that stage of the process, it is likely that the Minister will not have access to as much information about the nature and circumstances of a conviction as she will have when she comes to consider whether to suspend the recipient of the notice. Indeed, the Minister will certainly not have whatever information and submissions the recipient of the notice provides for the purpose of consideration at the stage of deciding whether to suspend. Circumstances might arise in which the need to protect the interests of ATSIC require swift action on the part of the Minister to give notice. For instance, a conviction for a really serious offence, demonstrating that great harm would be done to ATSIC if the offender were to continue in office, might suggest that the notice should be given as quickly as possible, and without the need to take time to decide whether a suspension could, in any event, result. It might be said that, in the case of a really serious offence of such a kind, the notice is so obviously justified and little thought is required to reach this conclusion. Undoubtedly, that is so, but cases close to the borderline might be much more difficult.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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