Re Yanner
[2000] FCA 975
•21 JULY 2000
FEDERAL COURT OF AUSTRALIA
Yanner, in the matter of an application under the Torres Strait Islander Commission Act 1989 [2000] FCA 975
IN THE MATTER OF AN APPLICATION UNDER THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989 AND IN THE MATTER OF MURRANDOO BULANYI MUNGABAYI YANNER
Q 296 OF 1999DOWSETT J
21 JULY 2000
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 296 OF 1999
IN THE MATTER OF AN APPLICATION UNDER THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989
AND
IN THE MATTER OF MURRANDOO BULANYI MUNGABAYI YANNER
APPLICANT
JUDGE:
DOWSETT J
DATE OF ORDER:
21 JULY 2000
WHERE MADE:
BRISBANE
ADDENDUM
The provisions of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) cited in these reasons for judgment are in the form which was in effect immediately prior to the first ministerial appointment to the Aboriginal and Torres Strait Islander Commission (“ATSIC”) following the 1999 round of elections for zone representatives. Following such appointment, the size of ATSIC was reduced to include only the seventeen zone representatives. The Chairperson is now elected by the Commissioners. There have been other consequential amendments. None is relevant for present purposes.
Associate
24 July 2000
FEDERAL COURT OF AUSTRALIA
Yanner, in the matter of an application under the Torres Strait Islander Commission Act 1989 [2000] FCA 975
CONSTITUTIONAL LAW – judicial power of the Commonwealth – justiciable matters – characteristics of judicial power – whether the power conferred on the Federal Court by par 31(3)(c) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) is part of the judicial power of the Commonwealth – Court given power to relieve person from disqualification from appointment as commissioner of ATSIC upon unspecified grounds – no guidelines expressly prescribed by the Act – whether guidelines implied by provisions of the Act or statutory preamble or statutory objects - whether power incidental to the judicial function – Held that the Act does not prescribe appropriate criteria for exercise by Court of its discretion – par 31(3)(c) does not confer the judicial power of the Commonwealth – par 31(3)(c) is invalid.
STATUTORY INTERPRETATION – reference to statutory preamble and statutory objects – whether permissible
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), par 31(3)(c); ss 3, 5, 7, 8, 9, 10, 11, 12, 27, 30, 31, 38, 40, 41, 41A, 102, 122, 131, 139A, 140, 142V, 196, 196A; Sch 4
Banking (Foreign Exchange) Regulations (Cth)
Judiciary Act 1903-1950 (Cth)The Constitution of the Commonwealth of Australia 1901, ss 71, 75, 76, 77
Conciliation and Arbitration Act 1904-1956 (Cth)
Matrimonial Causes Act 1959-1966 (Cth)
Aboriginal and Torres Strait Islander Heritage Protection Act1984 (Cth)
Commonwealth Authorities and Companies Act 1997 (Cth), ss 5, 7, 28
Judiciary Act 1903 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Banking Act 1974 (Cth)
Workplace Relations Act 1996 (Cth), ss 227, 228, 229, 230, 231
Acts Interpretation Act 1901 (Cth), s 15A
Corporations Law, s 206G
Companies Act (1961)
Companies Code (1981)The Criminal Code of Queensland
Palmer’s Company Law, Vol 2
Re Loubie [1986] 1 Qd R 272
Commissioner of Taxes v Parks [1933] St R Qd 306
Re Sweeney [1976] Qd R 296
Hooper v Hooper (1955) 91 CLR 529
Huddart, Parker & Co Proprietary Ltd v Moorehead (1908-1909) 8 CLR 330
The State of South Australia v The State of Victoria (1911) 12 CLR 667
In Re The Judiciary and Navigation Acts (1921) 29 CLR 257
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141
The Queen v Davison (1954) 90 CLR 353
Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134
The Queen v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277
Australian Commonwealth Shipping Board v Federated Seamen’s Union of Australasia (1925) 36 CLR 442
Consolidated Press Ltd v Australian Journalists’ Association (1947) 73 CLR 549
The Queen v Spicer; Ex parte Waterside Workers’ Federation of Australia (1957) 100 CLR 312
The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1969-1970) 123 CLR 361
Conimos v Conimos (1972) 127 CLR 588
Talga Ltd v MBC International Ltd (1976) 133 CLR 622
The Queen v Joske; Ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167
Brandy v Human Rights and Equal Opportunity Commission (1994-1995) 183 CLR 245
Gould v Brown (1998) 193 CLR 346
Re Wakim, Ex parte McNally (1999) 73 ALJR 839
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Abebe v Commonwealth (1999) 73 ALJR 584
Sue v Hill (1999) 73 ALJR 1016
Grollo v Palmer (1995) 184 CLR 348
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1
Kable v The Director of Public Prosecutions for the State of New South Wales (1995-1996) 189 CLR 51
Re Australasian Memory Pty Ltd (1997) 149 ALR 393
Australasian Memory Pty Ltd v Brien (1998) 45 NSWLR 111
Wacando v The Commonwealth (1981) 148 CLR 1
Tickner v Bropho (1993) 114 ALR 409
Re Shneider (1996) 71 FCR 69
Hosken v Australian Securities and Investments Commission (1998) 28 ACSR 542
Re C & J Hazell Holdings Pty Ltd (1991) 4 ACSR 703
Re McLaughlin (1993) 12 ACSR 374
Re Dingjan; Ex parte Wagner (1994-1995) 183 CLR 323IN THE MATTER OF AN APPLICATION UNDER THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989 AND IN THE MATTER OF MURRANDOO BULANYI MUNGABAYI YANNER
Q 296 OF 1999DOWSETT J
21 JULY 2000
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 296 OF 1999
IN THE MATTER OF AN APPLICATION UNDER THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989
AND
IN THE MATTER OF MURRANDOO BULANYI MUNGABAYI YANNER
APPLICANT
JUDGE:
DOWSETT J
DATE OF ORDER:
21 JULY 2000
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 296 OF 1999
IN THE MATTER OF AN APPLICATION UNDER THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989
AND
IN THE MATTER OF MURRANDOO BULANYI MUNGABAYI YANNER
APPLICANT
JUDGE:
DOWSETT J
DATE OF ORDER:
21 JULY 2000
WHERE MADE:
BRISBANE
REASONS FOR JUDGMENT
THE APPLICATION
The Aboriginal and Torres Strait Islander Commission (“ATSIC”) was established by the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (the “Act”). It consists of nineteen commissioners, all of whom are appointed by the relevant Minister (the “Minister”). This is an application pursuant to par 31(3)(c) of the Act for a declaration that notwithstanding the applicant’s conviction and sentence for a criminal offence, he ought not be disqualified from appointment as a commissioner. I shall hereafter refer to Aboriginal peoples and Torres Strait Islanders collectively as “indigenous people”, save where it is necessary to distinguish between the two groups.
THE ACT
Although it will be necessary to go to various aspects of the legislation in more detail, it is appropriate to commence with an overview. The Act contains an extensive preamble which recites that:
·it is enacted pursuant to the constitutional amendment conferring power upon the Commonwealth Parliament “to make special laws for peoples of the aboriginal race”;
·indigenous people were dispossessed of their lands and “successive governments have failed to reach a lasting and equitable agreement” with them concerning use of such lands;
·the Australian people intend to rectify “the consequences of past injustices”, to achieve reconciliation with indigenous people and to overcome their disadvantages;
·it is appropriate to further the objectives of the Act “in a manner that is consistent with the aims of self-management and self-sufficiency” for indigenous people;
·it is appropriate to establish structures to represent indigenous people “to ensure maximum participation (by them) in the formulation and implementation of programmes and to provide them with an effective voice within the Australian Government …”;
·the Parliament seeks to enable indigenous people to improve their economic status, social well-being and level of community services; and
·the Australian Government has acted to protect the rights of all citizens, particularly indigenous people, by ratification of certain international conventions and the Universal Declaration of Human Rights.
Section 3 sets out the objects of the Act as follows:
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.
The explanatory memorandum published in connection with the introduction of the relevant bill stated that ATSIC “would supersede the Department of Aboriginal Affairs and the Aboriginal Development Commission.” ATSIC is a representative body. Although the nineteen commissioners are appointed by the Minister, seventeen of them are effectively nominated for appointment by elected representatives of the indigenous people. The electoral system is based on the division of Australia into regions and zones, which division I should now explain.
REGIONS AND ZONES
Division 1 of Pt 3 of the Act divides Australia (excluding the Torres Strait area) into thirty-five regions. A Regional Council is constituted for each region pursuant to Div 2 of Pt 3, and Div 4 of Pt 3 makes provision for election of the members of each such council. Part 3A provides for a Torres Strait Regional Authority. Pursuant to Div 7 of Pt 3, the various regions (other than the Torres Strait area) are grouped into sixteen zones. The Torres Strait area constitutes a zone known as the “Torres Strait zone”. The members of the Regional Councils in each zone (other than the Torres Strait zone) elect one of their number to represent the zone. The Torres Strait Regional Authority elects one of its number to represent the Torres Strait zone. (See s 131.)
APPOINTMENT OF COMMISSIONERS
Division 3 of Pt 2 constitutes ATSIC. Section 27 provides that ATSIC is to consist of nineteen members namely:
(a) a chairperson;
(b)seventeen members who are to be the persons elected under Div 7 of Pt 3 to represent the zones; and
(c)one other member.
As I have said, the Minister must appoint the seventeen zone representatives as commissioners. The other two appointments are in his or her discretion.
Section 31 prescribes that:
(1)A person is not qualified to be appointed as a Commissioner unless the person is an Aboriginal person or a Torres Strait Islander.
(2)Subject to subsection (3), a person is not qualified to be appointed as a Commissioner if he or she:
(a)has been convicted of an offence against a Commonwealth, State or Territory law and sentenced to imprisonment for one year or longer; or
(b)has been convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced to imprisonment for 3 months or longer.
(3)Subsection (2) does not disqualify a person from being appointed as a Commissioner if:
(a)where the person was never actually imprisoned for the offence – at least 2 years have elapsed since the person was convicted;
(b)where the person served a term of imprisonment for the offence – at least 2 years have elapsed since the person was released from prison; or
(c)in any case – the Federal Court of Australia, on application by the person, declares that in spite of the person’s conviction, he or she ought not to be disqualified from being appointed as a Commissioner.
(4)The Federal Court of Australia has jurisdiction with respect to matters arising under subsection (3).
Similar provisions relating to disqualification as a result of conviction appear in s 102, which deals with qualification for election to Regional Councils, and in s 142V, which deals with qualification for election to the Torres Strait Regional Authority. The current application is made pursuant to par 31(3)(c).
THE SENTENCES
On 30 July 1999 the applicant was convicted in the District Court at Mt Isa on two counts of wilful damage and four of assault occasioning bodily harm, one of which was committed in company, a circumstance of aggravation under the Queensland Criminal Code. The offences occurred in May 1997. The learned District Court Judge ordered that the applicant be admitted to probation for a period of three years, that he perform 240 hours of community service and that he pay compensation totalling $2,500. The Attorney-General appealed, and on 10 December 1999 the Court of Appeal of the Supreme Court of Queensland upheld the appeal. The majority (McMurdo P and Thomas JA) were of the opinion that the orders for probation and community service should be set aside and that the applicant should, in lieu thereof, be sentenced to imprisonment for eighteen months, such period of imprisonment to be wholly suspended for a period of four years. Thus, on and after 10 December 1999, he was disqualified from appointment as a commissioner by virtue of par 31(2)(a) of the Act.
THE ELECTION
In October 1999 the applicant had been elected as a member of the Mt Isa Regional Council. On 14 December 1999 he was elected pursuant to s 131 as zone representative for the Queensland (Far North West) zone in which are located the Cooktown and Mt Isa regions. As I understand it, the applicant accepts that he is nonetheless disqualified from appointment as a commissioner and asks the Court to relieve him from such disqualification pursuant to par 31(3)(c).
The applicant’s position as a member of the Mt Isa Regional Council as at 14 December 1999, and therefore his eligibility for election as zone representative on that date, must be in doubt. Section 122 of the Act provides:
(1)Where the Commission is satisfied that a member of a Regional Council, since becoming, or last becoming, a member of the Regional Council:
(a)has been convicted of an offence against a Commonwealth, State or Territory law and sentenced in respect of the offence to imprisonment for one year or longer; or
(aa)…;
…
(h)…;
the Commission shall, in writing, declare that it is so satisfied.
(2)Where the Commission makes a declaration under subsection (1) about a member of a Regional Council, the member ceases to be a member of the Regional Council on the date of the declaration.
If the applicant’s situation satisfied the criteria prescribed by par 122(1)(a), then ATSIC was, on and after 10 December, obliged to remove him from the Regional Council, thus disqualifying him from election as a zone representative. I am told that ATSIC has not so acted, apparently because it is thought that as his conviction preceded the election for the Regional Council, the sentence of imprisonment passed after that election (by virtue of the order of the Court of Appeal) did not enliven the operation of s 122. Although that is a possible interpretation of the section, it produces an odd result. I invited the parties to make submissions on this aspect. Each has adopted the interpretation mentioned above. I do not necessarily adopt that interpretation, but in the absence of any action by ATSIC, I proceed upon the basis that the applicant is, and was at all material times, a member of the Mt Isa Regional Council and therefore eligible for election as zone representative.
THE HEARING
The matter first came on for hearing on 10 February. The applicant and the Minister were both represented, although counsel for the Minister indicated that he proposed to play only a limited role in the proceedings. There was discussion as to appropriate parties, resulting in an order that notice be given to the members of the Mt Isa and Cooktown Regional Councils, the persons entitled to vote in the relevant zone election held on 14 December. The matter was adjourned to 30 March. Shortly before that date, I raised with the parties the question of the constitutional validity of par 31(3)(c) and subs 31(4) of the Act. On 30 March counsel again appeared for the applicant and for the Minister. There was no other appearance. I directed the applicant to give notice of the constitutional issue to the Attorneys-General of the Commonwealth, States and Territories. The Attorney-General for the Commonwealth elected to intervene but did not seek to remove the matter into the High Court. On 5 May the Attorney-General for the Commonwealth appeared by counsel, as did the applicant and the Minister. Each made submissions supporting the constitutional validity of those provisions.
In Re Loubie [1986] 1 Qd R 272 at 276-278, I concluded that as a Judge of the Supreme Court of Queensland, I should consider the constitutional validity of state legislation which appeared to discriminate against the residents of other states, notwithstanding the fact that the parties to the proceedings before me had not taken the point. This view was based upon two decisions of the Full Court, Commissioner of Taxes v Parks [1933] St R Qd 306 and Re Sweeney [1976] Qd R 296. For present purposes, I adopt the reasoning to be found in those cases and in my own reasons in Loubie. I note that in Hooper v Hooper (1955) 91 CLR 529, the High Court considered the constitutional validity of Commonwealth legislation in proceedings which had been removed into the High Court from the Supreme Court of New South Wales because a constitutional point had been raised by a Judge of the latter Court in the course of hearing an undefended divorce petition. The High Court considered that the question had “arisen” for the purposes of s 40A of the Judiciary Act 1903-1950 (Cth), and that the matter had been “automatically” removed into the High Court. In those circumstances, and in the absence of any application to remove the matter into the High Court, I consider that I am bound to address the constitutional issue. The parties did not submit that I ought not do so, although counsel for the Attorney submitted that if the matter could be resolved on some other basis, I should take that course rather than address the constitutional question. Whilst that may be an appropriate course in most cases, the issue presently in question is so closely associated with the process of identifying the nature of the discretion conferred by s 31(3)(c) and ascertaining the considerations relevant to its exercise, that it would be quite artificial so to proceed.
THE CONSTITUTIONAL PROVISIONS
The relevant provisions of the Constitution are as follows:
71 Judicial power and Courts
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. …
76 Additional original jurisdiction
The Parliament may make laws conferring original jurisdiction on the High Court in any matter:
(i) arising under this Constitution, or involving its interpretation;
(ii) arising under any laws made by the Parliament;
(iii) of Admiralty and maritime jurisdiction;
(iv)relating to the same subject-matter claimed under the laws of different States.
77Power to define jurisdiction
With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
(i)defining the jurisdiction of any federal court other than the High Court;
(ii)defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
(iii)investing any court of a State with federal jurisdiction.
The only arguable basis for the conferment of jurisdiction upon the Federal Court pursuant to s 31 of the Act is par 76(ii), namely “any matter … arising under any laws made by the Parliament”.
THE CASES
The ambit of the “judicial power of the Commonwealth” and the meaning of the word “matter” in Ch III of the Constitution have been the subject of lengthy consideration on numerous occasions since Federation. For present purposes a good starting point is the following observation by Griffith CJ in Huddart, Parker & Co Proprietary Ltd v Moorehead (1908-1909) 8 CLR 330 at 357:
Apart from these considerations, I am of opinion that the words “judicial power” as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
In The State of South Australia v The State of Victoria (1911) 12 CLR 667, the Court was concerned with a boundary dispute between those two states. Section 75 of the Constitution confers jurisdiction in “all matters … between states …”. For present purposes, it is sufficient to say that the boundary in question had been fixed by agreement between the respective state governors. The Court concluded that review of such an exercise of executive power was not “a cause of action capable of judicial decision ...”. (per Griffith CJ at 706). At 674-675 Griffith CJ said (Barton and O’Connor JJ concurring):
I assent to the argument that the jurisdiction of the High Court, if any, is judicial and not political. So far, therefore, as a controversy requires for its settlement the application of political as distinguished from judicial considerations, I think that it is not justiciable under the Constitution.
The word “matters” was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice.
Instances of such controversies which would clearly be justiciable are questions arising under mail contracts, contracts for the construction and maintenance of telegraph lines at joint expense, and running agreements over railways.
In my opinion a matter between States, in order to be justiciable, must be such that a controversy of like nature could arise between individual persons, and must be such that it can be determined upon principles of law. This definition includes all controversies relating to the ownership of property or arising out of contracts.
Isaacs J concluded that boundary disputes between states were capable of being justiciable “matters” and continued at 721:
As a competent forum for inter-State controversies (the High Court’s) status is complete; and the lex fori must be either direct Imperial legislation or Colonial legislation authorized by some Imperial enactment.
If on examination of the case it be found that the claim is not supported by any law binding the defendants, but is dependent on political considerations merely, the Court must say so. It has jurisdiction to entertain the suit, but in the course of its exercise it may be compelled to adjudge adversely to the plaintiffs on the ground that no paramount law can be found to support their claim. An instance of such a case is found in Shekh Sultan Sani v. Sheikh Ajmodin [20 L.R. Ind. App., 50, at p. 68.]. A suit was brought in an Indian Court to declare the rights of the plaintiff to (an assignment of lands) and (another kind of grant). The decision was against him. The Privy Council ultimately held in these terms: – “Their Lordships are of opinion that the question … is one which belongs exclusively to the Government to be determined upon political considerations, and that it is not within the competency of any legal tribunal to review the decision which the Government has pronounced.” But the Court has always jurisdiction to determine in the first place whether the standard is political or legal.
At 742 Higgins J said:
Under the Constitution, it is our duty to give relief as between States in cases where, if the facts had occurred as between private persons, we could give relief on principles of law; but not otherwise.
I understand this decision to exclude from the judicial power of the Commonwealth and from the meaning of the word “matter” in s 75 (and, it follows, ss 76 and 77) any dispute, the resolution of which requires the Court to take account of “political”, as opposed to “judicial” considerations. Put another way, a justiciable matter is one which can be resolved by reference to matters of fact, legislation and legal principle.
In Re The Judiciary and Navigation Acts (1921) 29 CLR 257 concerned an attempt by the Commonwealth Parliament to confer upon the High Court jurisdiction to “hear and determine” any question referred to it by the Governor-General as to the validity of any enactment, such determination to be “final and conclusive and not subject to any appeal”. The majority (Knox CJ, Gavan, Duffy, Powers, Rich and Starke JJ) said at 265-7:
Section 51(xxxix) does not extend the power to confer original jurisdiction on the High Court contained in section 76. It enables Parliament to provide for the effective exercise by the Legislature, the Executive and the Judiciary, of the powers conferred by the Constitution on those bodies respectively, but does not enable it to extend the ambit of any such power. It is said that here is a matter arising under the Constitution or involving its interpretation, and that Parliament by section 30 of the Judiciary Act has conferred on this Court original jurisdiction in all matters arising under the Constitution or involving its interpretation. It is true that the answer to the question submitted for our determination does involve the interpretation of the Constitution, but is there a matter within the meaning of section 76? We think not. It was suggested in argument that “matter” meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which the Court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention; we do not think that the word “matter” in section 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. The word “matter” is used several times in chapter 3 of the Constitution (secs 73, 74, 75, 76, 77), and always, we think with the same meaning. …
Their Honours referred to the various judgments in State of South Australia v State of Victoria and continued at 266-7:
All these opinions indicate that a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law. The adjudication of the Court may be sought in proceedings inter-parties or ex parte, or, if Courts had the requisite jurisdiction, even in those administrative proceedings with reference to the custody, residence and management of the affairs of infants or lunatics. But we can find nothing in Chapter III. of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved.
As I understand it, this case establishes that a mere statutory right to apply to the Court for an order is not a “matter” for the purposes of Ch III. The application must concern some pre-existing right or duty. In later cases, it has been pointed out that as a matter of drafting practice, Parliament may create a right or duty in one provision and provide for its enforcement in another, or perform both functions in the same legislative provision. In either case, there will be a justiciable matter for the purposes of Ch III. However mere prescription of a judicial process will not necessarily create such a matter. It is necessary that upon the proper construction of the provision, there be a matter for resolution quite apart from any provision for judicial proceedings. See, for example, The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, at 154-6 (per Latham CJ) and at 166-8 (per Dixon J).
In The Queen v Davison (1954) 90 CLR 353, the High Court considered the conferment of jurisdiction in bankruptcy upon a deputy registrar of the Bankruptcy Court and in the course of so doing, considered the nature of that jurisdiction. At 366-7 Dixon CJ and McTiernan J quoted with apparent approval the following passage from the judgment of the Privy Council in Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134 at 149:
Without attempting to give a comprehensive definition of judicial power, (their Lordships) accept the view that its broad features are accurately stated in that part of the judgment of Griffith C.J. in Huddart, Parker & Co. Proprietary Ltd v. Moorehead (quoted above) which was approved by this Board in Shell Co of Australia, Ltd. v Federal Commissioner of Taxation ([1931] A.C. 275). Nor do they doubt, as was pointed out in the latter case, that there are many positive features which are essential to the existence of judicial power, yet by themselves are not conclusive of it, or that any combination of such features will fail to establish a judicial power if, as is a common characteristic of so-called administrative tribunals, the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also.
At 367-8 their Honours identified from the various cases, three considerations said to have been “emphasized” as relevant to the characterization of the judicial function. They were:
·existence of a controversy between subjects or between the Crown and a subject;
·determination of existing rights as distinguished from the creation of new rights;
·adjudication, submission by parties to adjudication and enforcement of the judgment.
Their Honours then continued at 368:
It may be said of each of these various elements that it is entirely lacking from many proceedings falling within the jurisdiction of various courts of justice in English law.
Their Honours then referred to administration of assets or trusts in the Court of Chancery, maintenance and guardianship of infants, the exercise of a power of sale by way of family arrangement and consent to the marriage of a ward of court. Their Honours also referred to declarations as to legitimacy, winding-up of companies, grants of probate and letters of administration. Their Honours then continued at 368-9:
But to say that a thing may be done in the course of the exercise of judicial power is not to say that it may not be done without the exercise of judicial power. The legislature may commit some functions to courts falling within Chapter III although much the same function might be performed administratively. In the judgment of this Court in Queen Victoria Memorial Hospital v. Thornton [(1953) 87 C.L.R. 144] the observation occurs:- “Many functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator. But that is because they are not independent functions but form incidents in the exercise of strictly judicial powers”.
It is this double aspect which some acts or functions may bear that makes it so difficult to define the judicial power.
At 369-70 their Honours continued:
The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss. 71 and 72 of the Constitution and this may be true also of some duties or powers hitherto invariably discharged by courts under our system of jurisprudence but not exactly of the foregoing description. But there are many functions or duties that are not necessarily of a judicial character but may be performed judicially, whether because they are incidental to the exercise of judicial power or because they are proper subjects of its exercise. How a particular act or thing of this kind is treated by legislation may determine its character. If the legislature prescribes a judicial process, it may mean that an exercise of the judicial power is indispensable. It is at that point that the character of the proceeding or of the thing to be done becomes all important. Where the difficulty is to distinguish between a legislative and a judicial proceeding, the end accomplished may be decisive. This was the point made by Holmes J in Prentis v. Atlantic Coast Line Co [(1908) 211 U.S. 210]: “A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power … And it does not matter what inquires may have been made as a preliminary to the legislative act. Most legislation is preceded by hearings and investigations. But the effect of the inquiry, and of the decision upon it is determined by the nature of the act to which the inquiry and decision lead up … The nature of the final act determines the nature of the previous inquiry. As the judge is bound to declare the law he must know or discover the facts that establish the law. So when the final act is legislative the decision which induces it cannot be judicial in the practical sense, although the questions considered might be the same that would arise in the trial of a case”. Though the purpose to which this test was put by Holmes J was to distinguish a judicial from a legislative function it may usefully be applied by analogy to ascertain whether a thing is done administratively or as an exercise of judicial power.
At 381-2 Kitto J said:
It may accordingly be said that when the Constitution of the Commonwealth prescribes as a safeguard of individual liberty a distribution of the functions of government amongst separate bodies, and does so by requiring a distinction to be maintained between powers described as legislative, executive and judicial, it is using terms which refer, not to fundamental functional differences between powers, but to distinctions generally accepted at the time when the Constitution was framed between classes of powers requiring different “skills and professional habits” in the authorities entrusted with their exercise.
For this reason it seems to me that where the Parliament makes a general law which needs specified action to be taken to bring about its application in particular cases, and the question arises whether the Constitution requires that the power to take that action shall be committed to the judiciary to the exclusion of the executive, or to the executive to the exclusion of the judiciary, the answer may often be found by considering how similar or comparable powers were in fact treated in this country at the time when the Constitution was prepared. Where the action to be taken is of a kind which had come by 1900 to be so consistently regarded as peculiarly appropriate for judicial performance that it then occupied an acknowledged place in the structure of the judicial system, the conclusion, it seems to me, is inevitable that the power to take that action is within the concept of judicial power as the framers of the Constitution must be taken to have understood it.
I understand this case to establish the following propositions.
·That the identifiable characteristics of the exercise of the judicial power may also be found in the exercises of executive or legislative power.
·Nevertheless, some functions are traditionally and indisputably part of the judicial function so that they must be within the judicial power of the Commonwealth. Some such functions may not show all of the common characteristics of the judicial process.
·Argument by analogy is permissible in determining whether a particular function is part of the judicial power.
·Some functions, not necessarily judicial, will become part of the judicial power if conferred upon a court. Such conferment will limit the processes by which the matters in question may be resolved to those appropriate to the exercise of that power.
·Other functions, not essentially judicial in nature, may be within the judicial power because they are incidental to the exercise of such power.
·It is the final act which is determinative of the nature of the process. The judicial function involves the determination of existing rights by reference to existing facts and law. The legislative function is to change the existing situation.
The next case in the series is The Queen v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277 (hereinafter referred to as “Spicer (BLF)”). Before considering that case it is necessary to refer to two earlier cases which were apparently approved by the majority in that case. The first is Australian Commonwealth Shipping Board v Federated Seamen’s Union of Australasia (1925) 36 CLR 442 which concerned a power to de-register an industrial organization and whether such power was part of the judicial power of the Commonwealth. At 453-4, Isaacs J said:
The creation and equipment of representative organizations both of employers and employees is an incident to the power in sec. 51(xxxv.) of the Constitution. They are instruments for the more effective exercise of the power … . Parliament may adopt them as part of its mechanism. That mechanism can be made and unmade at the will of Parliament. It may be moulded, re-fashioned, or abolished in any manner indicated. The step of establishing an organization may be retraced at any point and, for any reason declared by the Act, by any officer in whom Parliament places confidence for the purpose and to whom it gives the necessary discretion. The function created by sec. 60 is not judicial in the constitutional sense.
This view was shared by Knox CJ at (448) and Rich J (461). At 463, Starke J said:
The provisions of the Arbitration Act permitting the registration and incorporation of organizations under the Act have been upheld in this Court as a valid exercise of the power conferred by sec. 51, pl. xxxv. and pl. xxxix., of the Constitution … . But if the Parliament has authority under the arbitration power to permit the registration and incorporation of organizations, then that power necessarily extends to the control and regulation of those organizations, and to the cancellation or suspension of the registration or incorporation in such manner and by such means as Parliament provides. Provisions to that end are in no sense an exercise of the judicial power of the Commonwealth, … .
The High Court approved this decision in the second case, Consolidated Press Ltd v Australian Journalists’ Association (1947) 73 CLR 549, (per Latham CJ and McTiernan J at 559-560 and per Starke J at 563). In the latter case, the Court held that a power to de-register an industrial organization because of the content of its rules, or to disallow such rules was not an exercise of the judicial power of the Commonwealth. These cases seem to suggest that it is no part of the judicial power to determine questions concerning the structure of bodies set up by legislation to carry out functions in respect of which the Parliament is authorized to legislate. Such an abdication of judicial authority in connection with statutory bodies appears, at this stage in our constitutional development, to be surprising. It appears to have received little support in subsequent cases.
In Spicer (BLF), the Court considered a provision contained in the Conciliation and Arbitration Act 1904-1956 (Cth) authorizing the Commonwealth Industrial Court, upon its own motion or upon application, to disallow any rule of an industrial organization which in its opinion (a) was contrary to law or to an order or award; (b) was tyrannical or oppressive; (c) prevented or hindered members of the organization from observing the law or the provisions of an order or award; or (d) imposed unreasonable conditions upon membership or application for membership. (The identifying letters reflect those used in the relevant paragraphs in the Act and are used in the judgments.) Upon disallowance such a rule would be void. There was also power to direct the organization to alter the offending rule. The Court considered that the relevant provision was, in all material respects, similar to that which the Court had struck down in Consolidated Press. I will set out extensive extracts from the judgments because I consider the case to be very similar to that with which I am presently concerned.
At 289-90 Dixon CJ said:
… the draftsman … has not approached his task as if he were giving jurisdiction over a “matter” in accordance with s. 76(ii.) of the Constitution. Provided the necessary existence of a “matter” can be extracted from the nature of the power or authority given or from the terms in which it is given or from the implications, that might not be fatal.
… the criteria set by pars. (b), (c) and (d) are vague and general and give much more the impression of an attempt to afford some guidance in the exercise of what one may call an industrial discretion than to provide a legal standard governing a judicial decision. Parenthetically, it may be remarked that the meaning is by no means self-evident of the expression “impose unreasonable conditions upon the membership of any member”.
At 291 his Honour continued:
This does not mean that I regard the question whether rules of an organisation should be quashed as necessarily outside the judicial power of the Commonwealth. On the contrary, in my opinion there is no reason why, if by or under statute the rules of an organisation must conform with certain tests or standards of justice, fairness or propriety, jurisdiction to quash the rules might not be conferred upon a federal judicial court by an enactment framed in some form appropriate to s. 76(ii.) of the Constitution. Nor does it seem to me that the existence of a discretion necessarily takes such a jurisdiction outside judicial power. Of course it must not be an arbitrary discretion; it must be a judicial discretion proceeding upon grounds that are defined or definable, ascertained or ascertainable, and governed accordingly.
At 291-3, McTiernan J said:
The question for decision is whether the function defined by s. 140 of the Conciliation and Arbitration Act 1904-1956 is a part of the judicial power of the Commonwealth. The nature of the function is reform and annulment of a rule of “an organisation” defective according to the standards laid down in the section. … The creation of the organisation is not an end in itself; simply a means of administering the Act and pursuing its objects. (His Honour referred to the decision of Isaacs J in the Seamen’s Union case.) It would appear that the function of reforming and annulling a rule of a public agency of this kind is peculiarly once for executive action. “Very special and important rights” said Griffith C.J., “are conferred by the Act on a duly registered organization and its members, rights which are not merely rights inter se but against the public” … .
… The section says that the court may disallow any rule of an organisation either on the court’s own motion or on an application by a member. The power arises if the court is of the opinion that any rule falls within s. 140(1)(a) or (b) or (c) or (d). What is the proper meaning and application of each of these clauses is to be ascertained by canons of legal interpretation. But where the court entertains such opinion the section does not immediately invalidate the subject rule. The function of disallowance consists in a discretionary authority to disallow any rule which is within any of the enumerated descriptions. The court may disallow the rule at once, if its opinion is adverse to the rule. Or, instead of summarily disallowing the rule, the court may direct the organisation to alter it, within a specified time, “so as to bring it into conformity with the requirements of the Act”. The court may disallow the rule if its direction is not carried out. There is no avoidance of the rule until the court has ordered that the rule be disallowed. In short, there is involved in s. 140 the power to decide, according to criteria therein enumerated, whether a rule of an organisation is within the purview of the section, and, if it is, a discretionary authority to disallow the rule forthwith or upon failure to comply with the direction authorised by the section. The power to decide the initial question is consistent with judicial action but not inconsistent with executive action. The function consisting in the discretionary authority is essentially an operation of improving an administrative instrument and for this reason the exercise of the authority may involve weighing considerations of policy. It follows that the function is not in itself judicial. An order of disallowance under s. 140 could not be tested by legal principles. It would be really a judicial order.
At 294, his Honour continued:
It is possible that a power which is fit for executive or administrative action may be consistent with judicial action and if put in the hands of a court of law could properly be part of its jurisdiction as such. … But the difficulty of sustaining the section in this way is that … the power now in question is peculiarly a function for administrative action. … The subject of the power is such that it belongs irrevocably to the administrative sphere.
At 304-6, Kitto J said:
It is true, no doubt, that a power to disallow a rule of an organization has a degree of resemblance to some other powers which have been given to courts in the past, and that there is nothing necessarily foreign to the nature of judicial power in the fact that its exercise is conditional upon the formation of an opinion described in broad terms. It is true also that sometimes a grant of power not insusceptible of a judicial exercise is to be understood as a grant of judicial power because the recipient of the grant is judicial. But it by no means follows that whenever a power which has some similarity to an acknowledged judicial power is given to a judicial person or body there is a grant of judicial power. The reason for concluding in some such cases that the judicial character of the repository imparts a judicial character to the power is simply that the former provides a ground for an inference, which in those cases there is nothing or not enough in other considerations to preclude, that the power is intended and required to be exercised in accordance with the methods and with a strict adherence to the standards which characterise judicial activities. That is not a necessary inference, however, in every case of this kind. The authorised act itself, though not inherently incapable of judicial performance, may be by nature more appropriate for administrative performance. The possible effects of the act when done upon persons, situations and events may be such as to suggest the probability that decisions to exercise or to refrain from exercising the power were intended to be made upon considerations of general policy and expediency alien to the judicial method. The circumstances in which the power is to be exercisable may be prescribed in terms lending themselves more to administrative than to judicial application. The context in which the provision creating the power is found may tend against a conclusion that a strictly judicial approach is intended. And there may be other considerations of a similar tendency. The problem in such a case ought therefore to be recognised as one of statutory construction, the task being to decide whether or not the provision should be understood as intending that in discharging the responsibility which possession of the power entails the person or body entrusted with it is to act strictly as a judge. The fact that the person occupies a judicial office, or that the body is or is not a judicial tribunal is only one matter to be considered. There may be many others.
Section 140 seems to me an example of a provision which, though it empowers a court to do an act – the disallowing of a rule – which is not insusceptible of a judicial performance, nevertheless is found to mean, on a clear preponderance of considerations, that the function for which it provides is to be performed as an administrative function, with a more elastic technique, and more of an eye to consequences and industrial policy generally, than could properly be expected of a court. The authority given is to act in pursuance of an opinion, formed either spontaneously or upon representations made by a person who may or may not be affected by the rule in question. The kinds of rules which may be disallowed are described as possessing any of several qualities which are indicated in terms so broad as to be more appropriate for conveying general conceptions to a person engaged administratively in performing a function conceived of as part of a system of industrial regulation than for stating, to a body acting judicially, grounds of jurisdiction which it is to interpret and apply with precision. … Moreover – and this is the most important consideration of all – s. 140 belongs to a group of provisions, comprising all those which deal with the registration and regulation of industrial organisations, which as a group are characterised by the purpose of facilitating the prevention and settlement of inter-State industrial disputes by conciliation and arbitration under the Act. It is difficult to think that s. 140 intends a consideration of an organisation’s rules to be undertaken otherwise than with a view to the improvement of the organisation as an instrument for the representation of employees in everything connected with the maintenance and restoration of industrial harmony. To read the section as creating a jurisdiction to apply fixed standards to particular situations, and to make decrees with a judicial disregard of consequences, would be plainly incongruous with the scheme of the Act and the terms of the section. In particular, it seems to me to be required, as a matter of practical good sense, that in forming an opinion as to whether a rule of an organisation is “tyrannical” or “oppressive”, or imposes “unreasonable” conditions upon the membership of a member or upon an applicant for membership, the repository of the power should look to the effect which the existence or non-existence of the rule will be likely to have upon the working of the machinery of conciliation and arbitration under the Act; and this points unmistakably to an intention that the performance of the function provided for by the section is to be approached in a manner incompatible with the restraints peculiar to judicial power.
Although Taylor J referred to the Shipping Board case with apparent approval, his Honour appears to have disposed of this matter upon a basis similar to that adopted by Dixon CJ and Kitto J. (See pp 309-310.) The case establishes the following propositions:
·that the legislation confers jurisdiction concerning a relevant matter will be a question of construction in each case;
·that some discretions are inevitably more appropriate to exercise by the executive than to exercise by the judiciary;
·that the exercise of a discretion involves the comparison of relevant circumstances with prescribed standards and otherwise depends upon ascertained or ascertainable considerations, the function may be judicial;
·that the rules and structures of organizations established by the Parliament to facilitate the exercise of powers in respect of which it is authorized to legislate are peculiarly appropriate to the legislative or executive function, rather than to the judicial functions; but nonetheless, Parliament may properly confer jurisdiction to assess the validity of such rules against “ascertained or ascertainable” criteria; and
·that conferment upon a court of a power, “not insusceptible of a judicial exercise”, may imply an intention that the power is to be exercised “in accordance with the methods and with a strict adherence to the standards which characterize judicial activity”, whether this is so in a particular case will depend upon the construction of the statute in question.
By way of footnote I should say that in some of the later cases, Spicer (BLF) was distinguished upon the basis that the legislation in question had permitted the relevant court to proceed on its own motion. Although that was certainly a factor leading to invalidity, it was by no means the critical one.
Shortly thereafter, the Court delivered its judgment in The Queen v Spicer; Ex parte Waterside Workers’ Federation of Australia (1957) 100 CLR 312, (hereinafter referred to as “Spicer (WWF)”). The case concerned the purported conferment upon the Commonwealth Industrial Court of power to entertain appeals from decisions of the Australian Stevedoring Industry Authority, cancelling or suspending the registration of waterside workers. The High Court held that the power was non-judicial and therefore impermissibly conferred. The majority observed at 317:
The validity of s. 37 depends upon its real nature and meaning. If it is to be interpreted as conferring upon the Commonwealth Industrial Court jurisdiction to hear and determine a matter arising under a law made by the Parliament of the Commonwealth within the meaning of s. 76(ii.) of the Constitution, then there is nothing to be said against its constitutional validity. A matter of that description involves a claim of right depending on the ascertainment of facts and the application to the facts of some legal criterion provided by the legislature … . The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards. An analysis of s. 37(1) considered independently of the sections which precede it in the Stevedoring Industry Act 1956 shows that in reality it does nothing but say that a person whose registration as a waterside worker has been cancelled or suspended may within a limited time appeal to the Commonwealth Industrial Court and that that court may confirm, vary or set aside the cancellation or suspension.
At 319, their Honours continued:
If s. 37 had been framed in such a way as to invest the Commonwealth Industrial Court with power to hear and determine issues defined with more or less precision as to the infringement by waterside workers of prescribed standards of conduct or as to the fulfilment of other definite conditions upon which the cancellation or suspension of registration was to depend, there might have been little difficulty in treating the duty or authority thus imposed or conferred upon the court as part of the judicial power of the Commonwealth. And if a discretion had been added to remove or reduce the suspension or cancellation if the real merits appeared so to require, notwithstanding that an infringement had occurred, that would not necessarily have been inconsistent with a grant of judicial power.
At 321, their Honours continued:
The argument in support of the validity of s. 37 was simply that once the power was conferred on a court established for the exercise of the judicial power of the Commonwealth the provision should be restrained by construction to the limits required for the exercise of jurisdiction falling within the judicial power of the Commonwealth. For this argument much might be said were it not for the history of the provisions and were there not so much evidence of the fact that the true intent of the legislation is that the exercise of power arising under s. 37, wherever it might reside, should be governed by what might broadly be called administrative and industrial considerations and should not be restricted to purely legal criteria.
This case also has a marked similarity to that presently under consideration. Determination of an appeal upon unspecified grounds may be compared with the discretion to relieve from disqualification upon unspecified grounds. It also highlights the limitation upon the proposition that conferment of jurisdiction upon a court should be seen as dictating a construction of the legislation in question so as to exclude from the exercise of that jurisdiction, consideration of any matter inappropriate to the judicial process.
In The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1969-1970) 123 CLR 361, the relevant legislation conferred power upon the Trade Practices Tribunal, if satisfied that “an examinable agreement” or “examinable practice” existed, to determine whether the agreement or practice was contrary to the public interest. The Act provided that the basis for such a determination should be the principle that the preservation and encouragement of competition was desirable. It also set out a number of other factors which could be taken into account by the Tribunal. Such a determination would render the agreement unenforceable. Thus the Act required two decisions, one as to “examinability” and the other as to the public interest.
At 374-5, Kitto J said:
Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its conclusion in the category of judicial power is to be justified.
The powers of the Tribunal do not present any such feature, and they are not directed to any determination or order which resolves an actual or potential controversy as to existing rights or obligations. … The inquiry is not into the validity of the agreement or the legality of the practice, … . Even in relation to an agreement, the question is not whether it is contrary to public policy in the sense in which the term is used in the common law … . The determination does not resolve any question as between opposed interests. It merely records whether the Tribunal has satisfied itself, first, that an agreement or practice has the characteristics which the Act comprehends in the word “examinable”, and, secondly, that the restriction or practice, if examinable, is contrary to the public interest. Such determinations as these are quite often to be made in the exercise of administrative power.
At 376-7, his Honour continued:
A determination that an agreement or a practice is examinable therefore has, in my opinion, no point of contact with the concept of judicial action unless it derives from the nature of the power to which it is preliminary. But the power which the Tribunal may exercise if satisfied on the preliminary point is to determine, “in accordance with its opinion”, a question that is essentially non-justiciable. I so describe it for the reason that it does not depend upon the application of any ascertainable criterion. The Act requires the Tribunal in considering the question of the public interest to make a basic assumption and to take certain matters into consideration …, but the question upon which it has to pronounce is not as to whether the relevant restriction or practice satisfies an ascertained standard but as to whether it satisfies a description the context of which has no fixity – a description which refers the Tribunal ultimately to its own idiosyncratic conceptions and modes of thought. In words which I take from the joint judgment in Reg. v. Spicer; Ex parte Waterside Workers’ Federation of Australia …, it may be said that here there is no “claim of right depending on the ascertainment of facts and the application to the facts of some legal criterion provided by the legislature”. … Similarly, to confer a power of discretionary judgment as to whether a restriction or practice has a specified quality may be to confer judicial power, but only if the quality is so described that its existence is to be judged by applying an objective test or standard supplied by the legislature. When the Tribunal, in conformity with s. 49(1)(b), “determines, in accordance with its opinion, whether the relevant restrictions to which the proceedings relate are contrary to the public interest” it necessarily supplies for itself its own subjective criterion for deciding, as a matter of individual opinion, though on the assumption required by s. 50(1) and taking into account all the matters specified in the Act, where the public interest appears to it to lie in the circumstances in which the restrictions or practice operate. Thus the work of the Tribunal is work which would be appropriate for the legislature itself to do if it had the time to consider individual cases.
At 378, his Honour continued:
The effect given by the Act to a determination under s. 49 that a restriction or practice is contrary to the public interest is to render unenforceable for the future an agreement under which the restriction is accepted or the practice is provided for …, and to enable the Tribunal to make such orders as it thinks proper for restraining future conduct which falls within certain descriptions … . The determination itself has no operative effect: it constitutes the factum by reference to which the Act operates to alter the law in relation to the particular case. … It presents a direct contrast with an injunction granted by a court as a means of enforcing obligations that have been established by adjudication. The order restrains future conduct, not as being in breach of ascertained obligations, but as being in conformity with ascertained obligations or practices – not in order to ensure observance of them but to prevent observance of them, because it is considered that their observance would be against the public interest. The Act … operates upon the order to give its provisions the force of law, and thus to alter the law for the future in relation to the particular case.
For these reasons the powers of the Tribunal seem to me to be of a nature foreign to the concept of judicial power.
At 399-400, Windeyer J said:
Proceeding from the preliminary inquiry to the next stage – the adjudication of whether a matter is “contrary to the public interest” – that phrase seems to me to embody considerations much further removed from traditional judicial concepts than those which the words “just and equitable” express when applied in a controversy between parties. The public interest is a concept which attracts indefinite considerations of policy that are more appropriate to law-making than to adjudication according to existing law. The Act directs the Tribunal as to matters it is to “take into account” in considering what the public interest requires. The generality of these matters prevents their providing objectively determinable criteria. In the result the jurisdiction of the Tribunal to make determinations and orders depending upon its view of where the public interests lies and what the public interest requires seems to be an exercise of a legislative or administrative function of government rather than of the judicial power.
These passages demonstrate that:
·a function which does not involve the resolution of a dispute inter parties, upon existing facts and according to existing law, will be part of the judicial power only if it possesses “some special compelling feature”;
·determination of a preliminary question going to jurisdiction is not sufficient to constitute the making of a subsequent decision part of the judicial power; and
·a decision based upon opinion will be an exercise of the judicial power only if the legislation provides objective standards.
The express guidelines for decision-making in the Tasmanian Breweries case (which were held to be inappropriate for judicial exercise) may be contrasted with the complete absence of any express guidelines in the present case. If the conferment of jurisdiction presently under consideration is valid, it can only be because sufficient guidelines as to the exercise of the discretion are implied by the terms of the Act.
In Conimos v Conimos (1972) 127 CLR 588, the High Court considered a challenge to the validity of a provision of the Matrimonial Causes Act 1959-1966 (Cth) which invested the state Supreme Courts with jurisdiction in matrimonial causes, including ancillary proceedings for orders as to maintenance and property settlement. It was submitted that these latter matters were not properly part of the judicial power of the Commonwealth. McTiernan and Menzies JJ said at 591:
In our opinion, the challenge fails because it is a recognized part of judicial power to make orders of the sort authorized by the sections in question in the exercise of judicial power to hear and to determine matrimonial causes. The powers conferred by the sections are ancillary to, and take their colour from, the valid grant of jurisdiction to hear and determine matrimonial causes.
Walsh J said at 593-4:
Those provisions [as to maintenance and property settlement] are to be construed and applied as provisions conferring powers in aid of the exercise of the jurisdiction to hear and determine proceedings for divorce and other forms of substantive matrimonial relief. That being so, it is impossible to maintain that the discretion conferred upon the court is not a judicial discretion or that it is not governed or bounded by any ascertainable test or standard, but is entirely arbitrary in its nature.
Gibbs J said at 599-600:
The power is thus one that is exercised as an incident to judicial proceedings, it is committed to a court and a judicial process is prescribed for its exercise. It can hardly be doubted that such a power is itself judicial … . It is true that in determining an application under s. 86 the court, after deciding such questions of fact and law as have arisen, is called upon to make a discretionary judgment. The discretion, although wide, must, …, “be exercised according to accepted principle, for what is just and equitable in this jurisdiction is not a matter of unfettered individual opinion”. It is not a discretion of an arbitrary kind. The standard imported by the familiar words “just and equitable” is “by no means foreign to the judicial function” … nor is it “so indefinite as to be insusceptible of strictly judicial application” … . It is also true that s. 86 enables the court to create new rights and impose new duties and not merely to enforce legal right (sic) already existing, but the fact that a court is authorized to create or alter rights and not merely to declare and give effect to pre-existing rights does not necessarily show that the powers conferred are not judicial powers … .
Stephen and Mason JJ, in separate judgments, came to similar conclusions for similar reasons.
This decision depends primarily upon two propositions: firstly, that the challenged jurisdiction was incidental to the jurisdiction to dissolve marriages, which latter jurisdiction was clearly judicial; secondly, that to the extent that the breadth of the discretion might appear to be too wide for judicial exercise, it was to be read down by reference to established principles and to the context of the matrimonial and financial circumstances of the parties. This approach to the width of an apparently unlimited discretion was again adopted in Talga Ltd v MBC International Ltd (1976) 133 CLR 622 at 629 (per Gibbs J) and 634 (per Stephen, Mason and Jacobs JJ). I will return to that case at a later stage.
In The Queen v Joske; Ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194, the Court considered the validity of conferment upon the Australian Industrial Court of jurisdiction to determine whether “an invalidity” had occurred in the affairs of a registered industrial organization and to make such declaration as it might think proper. There was an express power to make “such order as it thinks fit to rectify or cause to be rectified the invalidity, or to negative, modify or cause to be modified the consequences in law of the invalidity, or to validate any act, matter or thing rendered invalid by or as a result of the invalidity …”. The Industrial Court was required to satisfy itself that any such order would not do substantial injustice to the organization, any member or creditor or any other person having dealings with it. It was also empowered to declare that “(a) a part of the organization … has ceased to exist or to function effectively and there are no effective means under the rules of the organizational branch by which it can be reconstituted or enabled to function effectively …; or (b) an office or position in the organization or in a branch of the organization is vacant and there are no effective means under the rules of the organization or branch to fill the office or position …”. A further provision authorized the Industrial Court to approve schemes for the reconstitution of such organizations and to fill vacant offices. Again there was an obligation to ensure that no substantial injustice was done to the organization or to any member.
Stephen J said at 210-211 (Barwick CJ concurring):
It is the power to rectify, modify or validate as the court thinks fit, and the power to determine whether an organization has ceased “to function effectively” and, if so, to sanction a scheme to rectify the position, in each case qualified only by the provision as to substantial injustice, that are particularly seized upon by the prosecutors as revealing in these sections that other than judicial power has been conferred on the Court.
These provisions are concerned exclusively with the nature of the remedies open to the Court once it has adjudicated upon matters which have been initiated by a party and the determination of which is an eminently judicial function. The particular nature of an available remedy, at least when it is one not unfamiliar as part of the traditional equipment of courts of law or equity, can seldom be such as of itself to involve a court in a non-judicial function.
The power … to relieve against what otherwise would be the invalidating effect of non-compliance with requirements of the law is a commonplace of our jurisprudence and can scarcely of itself involve any overstepping of the bounds of judicial power. To qualify, by reference to the avoidance of “substantial injustice”, the exercise of the wide discretionary power conferred by the words “as it thinks fit” introduces a concept with which courts are familiar and which does nothing to suggest a non-judicial function. By directing attention to the effect of a proposed order upon all those likely to be affected by it the Court is required to have regard to all the circumstances of the case. [His Honour then referred to the decision in Conimos v Conimos (supra).]
No different considerations appear to me to apply to [the relevant section]; when the Court has made a declaration under sub-s. (1) of that section a situation is disclosed in which some part of a registered organization has ceased to exist or has become moribund; the rules of the organization are found to provide no solution but some efficacious remedy is called for; the traditional response of the law in such a case has been to do very much what sub-s. (2) provides for, to empower the Court to supervise a scheme for reconstitution of the defunct or moribund organization. In the fields of charitable trusts and of companies the same concept has been employed in exercise of power eminently judicial in character. It is said that the reference in [the section] to an organization having ceased “to function effectively” invokes broad considerations of industrial policy such as are referred to in the recitation of the chief objects of the legislation … . I regard the reference to effective functioning as much more limited in scope; it is concerned with the performance, by the “part of the organization” which has been found wanting, of its function as such a part. Whether it is, in this sense, functioning effectively is a matter which is entirely within the scope of determination by the exercise of judicial functions.
Mason and Murphy JJ delivered joint reasons to somewhat similar effect. Two passages in their Honours’ reasons are arguably of particular significance for present purposes. The first appears at 215-6 as follows:
Many examples are to be found in the exercise of judicial power of orders which alter the rights of the parties or are the source of new rights. Likewise, there are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised – nevertheless they have been accepted as involving the exercise of judicial power … . It is no objection that the function entrusted to the Court is novel and that the Court cannot in exercising its discretion call in aid standards elaborated and refined in past decision; it is for the Court to develop and elaborate criteria regulating the discretion, having regard to the benefits which may be expected to flow from the making of an order … and the impact which such an order will have on the interests of persons who may be affected.
The second passage is at 217, where their Honours said, referring to Spicer (BLF):
True, it was said in that case that the discretion … was not a judicial discretion but was based “wholly on industrial or administrative considerations” … and involved “considerations of industrial policy” … . We do not regard these observations as indicating that the mere requirement that a court take into account considerations of industrial policy in exercising a discretion is of itself enough to stamp that discretion with the character of a non-judicial function. The observations were made in a context in which there were other grounds supporting the conclusion reached by the Court.
It is implicit in the reasons of Stephen J and in those of Mason and Murphy JJ that the power in question was merely a new remedy for resolving disputes within industrial organizations in which questions of validity or organizational effectiveness arose. Their Honours referred to analogous proceedings in other legal contexts as demonstrating the suitability for judicial resolution of such problems. I will discuss the reference by Mason and Murphy JJ to “industrial policy” in the context of the next case.
In Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, the Court was concerned with power conferred by the Corporations Law upon the Corporations and Securities Panel to determine whether “unacceptable circumstances” had occurred in connection with a takeover offer. It was submitted that such a power was an exercise of the judicial power of the Commonwealth and therefore improperly conferred upon a body which was not a court within the meaning of Ch III. The Court said unanimously at 188-191:
True it is that the making of binding declarations of right by way of adjudication of disputes about rights and obligations arising from the operation of the law upon past events or conduct is a classical instance of the exercise of judicial power … . But the declarations for which [the Law] provides are not binding declarations of right in the sense in which that term is used, more particularly in the context of the exercise of judicial power. That is because the adjudication which the Panel under [the Law] is called upon to make is not an adjudication of a dispute about rights and obligations arising solely from the operation of the law on past events or conduct.
The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power ... . Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power.
It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised … . So, if the ultimate decision may be determined, not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power … . That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.
Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power. In Re Ranger Uranium Mines … the Court said:
“The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.”
The Court was then speaking with reference to an arbitral function of the Conciliation and Arbitration Commission but, as the judgment shows …, the remarks apply with equal force to determinations made for administrative, executive or legislative purposes.
…
In some situations, the fact that the object of the determination is to bring into existence by that determination a new set of rights and obligations is not an answer to the claim that the function is one which entails the exercise of judicial power. The Parliament can, if it chooses, legislate with respect to rights and obligations by vesting jurisdiction in courts to make orders creating those rights or imposing those liabilities. It is an expedient which is sometimes adopted when Parliament decides to confer upon a court or tribunal a discretionary authority to make orders which create rights or impose liabilities. This legislative technique and its consequences in terms of federal jurisdiction were discussed by Dixon J. in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett … . Leaving aside problems that might arise because of the subject-matter involved or because of some prescribed procedure not in keeping with the judicial process, where a discretionary authority is conferred upon a court and the discretionary authority is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to policy considerations or other matters not specified by the legislature, it will be possible to conclude that the determination by the court gives effect to rights and obligations for which the statute provides and that the determination constitutes an exercise of judicial power … . However, where, as here, the function of making orders creating new rights and obligations is reposed in a tribunal which is not a court and considerations of policy have an important part to play in the determination to be made by the tribunal, there is no acceptable foundation for the contention that the tribunal, in this case the Panel, is entrusted with the exercise of judicial power.
Once again, I am of the view that no valid analogy can be drawn between the discretion conferred by the Workplace Relations Act and the present discretion. An industrial organization is concerned only with the industrial interests (broad as these may be) of its members who constitute a limited and readily identifiable class, even if the organization is large. Although some of the earlier cases suggest that such an organization has a public role going beyond its duty to its members, that role is nonetheless limited. In no sense could it be compared with that of a department of state, whereas ATSIC performs the functions of such a department. Under the Workplace Relations Act, the offences, conviction for which will lead to disqualification, are limited to offences of dishonesty, offences in connection with the conduct of organizations and offences involving violence to the person or property. Again, this further limits the circumstances in which the discretion may be invoked and says something about the nature of the discretion and the factors relevant to its exercise. Finally, the Act prescribes criteria for the exercise of the discretion. Although the catch-all phrase “any other matter that, in the court’s opinion, is relevant”, may suggest an unlimited discretion, the various matters to which I have already referred and in particular, the other specified criteria, give a basis for assessing the relevance or irrelevance of any other factor.
PARAGRAPH 31(3)(c) – THE “MATTER”
Adopting the words used by Dixon CJ in Spicer (BLF), “… there is no reason why … jurisdiction … might not be conferred upon a federal judicial court by an enactment framed in some form appropriate to s. 76(ii.) of the Constitution”, to exercise a discretion to relieve from disqualification for appointment to ATSIC, which disqualification would otherwise follow from a prescribed conviction. However, if such discretion is to be validly conferred upon such a court, “it must not be an arbitrary discretion; it must be a judicial discretion proceeding upon grounds that are defined or definable, ascertained or ascertainable, and governed accordingly”. It follows that the validity or otherwise of the conferment of jurisdiction pursuant to s 31(3)(c) will depend upon whether it is possible to ascertain from the legislation, sufficient guidance as to the criteria to be considered in its exercise. In considering this matter it will be necessary, at some stage, to give weight to the fact that Parliament has chosen the Court as its preferred repository for the discretion, in order to determine whether or not that factor, when taken with all other relevant factors, leads to a conclusion in favour of validity. In this exercise, the role and functions of ATSIC will also be relevant considerations.
CRITERIA – PREAMBLE, SECTIONS 3, 7-14
It was at least tacitly submitted that the preamble and the s 3 objects offer some guidance to the proper construction of par 31(3)(c). In the following discussion, I will also have regard to ss 7-14. These provisions are relevant in two ways. Firstly, they demonstrate that ATSIC is very much a part of the executive branch of government. Secondly, they may give guidance as to the factors to be considered in exercising the par 31(3)(c) discretion. However, if such guidance compels consideration of factors which are too imprecise for consideration in the judicial process, or too closely associated with matters of policy for such consideration, then the purported conferment of jurisdiction is not authorized by s 76 of the Constitution.
The preamble appears to be a blueprint for effecting “reconciliation” between indigenous people and the rest of the Australian population. It also proposes guidelines for the rehabilitation of indigenous people and for their relief from any disadvantage suffered since the commencement of European settlement. As I have said, ATSIC is the principal mechanism for achieving these goals. The personalities, personal qualities and qualifications of the commissioners will be key factors in the successful performance of its role. Decisions as to suitability for appointment will inevitably involve political judgment. A candidate may be so prominent in one or other of the indigenous communities that achievement of the aspirations set out in the preamble and the s 3 objects, will be greatly facilitated by his or her appointment as a commissioner, notwithstanding disqualification pursuant to s 31. It seems that a former South African government, conscious of the standing of Nelson Mandala amongst indigenous South Africans, made decisions as to his treatment in prison and eventual release, taking into account his potential role in the resolution of South Africa’s racial problems. (John Carlin, “The Long Walk of Nelson Mandela” (1999) < Such considerations are clearly political and quite inappropriate for assessment in the judicial process. It might be thought that the present problem is far removed from the South African experience, but there is much in the material put before me in this case which goes to the applicant’s capacity and status in the indigenous community rather than to his “character”. Although the South African example may be extreme, it gives an indication of the issues which may arise if the Court is to have regard to the preamble and s 3 objects in exercising the par 31(3)(c) discretion. It may be quite artificial to assess the suitability of a candidate for nomination as a commissioner without regard to the milieu in which ATSIC operates as is revealed in the preamble and in ss 3 and 7-12.
The electoral process leading to appointment as a commissioner is designed to produce candidates who are perceived by their constituents to be able to represent them in the determination of very weighty matters as is revealed by those provisions of the Act. Judgment about such matters will inevitably be highly subjective. To require the Court to override the will of the relevant constituency would seriously compromise it by drawing it into the purely political sphere. Quite apart from the election process, decisions as to the long-term aspirations and goals identified in the Act and decisions as to appropriate methods for achieving them are also very much matters of value judgment, quite removed from the proper ambit of the judicial process. To give effect to these considerations would necessitate the adoption of current government or ATSIC policy or the development by the Court of its own policy. Neither approach is part of the judicial function. I consider that this Court could not properly be asked to take account of the preamble or the s 3 objects in exercising the discretion under par 31(3)(c). Sections 7-12 confirm the political nature of ATSIC’s operation. It follows that if the Act prescribes consideration of such matters in exercising the par 31(3)(c) discretion, then the matter is not part of the judicial power of the Commonwealth.
OTHER POSSIBLE CRITERIA
If those considerations are excluded, little remains in the Act from which to identify factors relevant to the exercise of the par 31(3)(c) discretion. In argument, it was suggested that factors such as “good character” and “fitness for office” might be appropriate. This approach assumes that Parliament has prescribed that conviction and sentence should be prima facie evidence that the person in question is not of good character or is unsuited to appointment. This may be because conviction and sentence bespeak relevant unworthiness or incapacity, or because other commissioners might not want to work with such a person, or because it would undermine the public perception of ATSIC if such a convicted person were a commissioner. The argument also assumes that Parliament had in mind the possibility that notwithstanding such prima facie unsuitability, a candidate may be able to demonstrate that he or she is suitable for appointment. The problem with this approach is that the very specific range of circumstances which result in disqualification leaves little or no room for so doing.
At first glance, one might think that factors such as:
·circumstances of the offence, including effects on others;
·factors personal to the offender; and
·prospects for, and any demonstration of rehabilitation,
might lead the Court to conclude that the offence was not such as to require disqualification. The seriousness of a particular offence might depend upon a wide range of circumstances. Similarly, the personal circumstances of the offender may vary greatly and suggest a more or less lenient view of the offence in question. However these factors are routinely taken into account in the sentencing process. In making disqualification dependent upon the imposition of a particular sentence, the Act has already taken them into account. It seems unlikely that Parliament intended the Court to consider those factors again in exercising the par 31(3)(c) discretion. As to rehabilitation, society and the courts generally accept that as time passes, the relevance of prior misconduct to the assessment of a person’s character and suitability for employment declines, provided that he or she has not re-offended. Again, the Act has, in effect, prescribed the relevant time after which rehabilitation is to be presumed, giving no guidelines as to the circumstances in which any shorter time might be adopted. Theoretically, it is possible that the Court might be satisfied as to rehabilitation by the candidate’s conduct over a shorter period than the two years stipulated in the Act, but from a practical point of view, that is unlikely. The prescribed sentences are such that only relatively serious offences are in contemplation. It is unlikely that rehabilitation could be demonstrated in a convincing way in any shorter period than that prescribed. It is, in my view, unlikely that the Court was intended to conduct an inquiry into the degree of rehabilitation demonstrated by a potential candidate over a period shorter than two years.
I should make one further comment concerning the Minister’s submission as to the “fit and proper” test. Counsel referred to a number of cases in which courts have addressed the test, suggesting to the casual reader that it has clear meaning, well-settled by judicial authority and therefore suitable for application by a court. It should be noted, however, that in each case, the relevant court was reviewing an administrative decision. The cases are not examples of courts applying such a test in exercise of a judicial power. In any event, I do not suggest that it will always be impossible to give meaning to such a prescription. I rather suggest that in the present context, it could not be given meaning other than by reference to considerations so imprecise as to be inappropriate in the judicial process.
An alternative approach would be to treat par 31(3)(c) as prescribing an assessment of the appropriateness, in all the circumstances, of the candidate’s being appointed as a commissioner. However such an approach would take the matter no further. It would still be necessary to identify some objective and rational basis for relaxing the specific criteria for disqualification prescribed in subss 31(2) and (3) without depriving those provisions of all practical meaning. I am unable to identify any such basis.
Another possible approach would require consideration of the candidate’s particular skills or qualities and ATSIC’s need of them, but such an approach poses its own problems. Firstly, it is not easy to identify the skills or qualities which may be appropriate. One might expect that each commissioner should be knowledgeable concerning indigenous people and their needs, and therefore able to represent them, give appropriate advice to government and participate in the development of programmes to meet those needs. All sorts of personal qualities may be useful in performing those functions. Obviously enough, the capacity to work with others would be high on any such list, as would reliability, enthusiasm, dedication, self-discipline and focus. No doubt there are many skills, including vocational skills which would also be of value. However these matters are all quite inappropriate for assessment in the judicial process. In any event, it is most unlikely that any one potential candidate will have such a combination of these qualities and/or qualifications as to render him or her indispensable to ATSIC’s workings. It is unlikely that the general disqualification following conviction and sentence, as prescribed by s 31, is to give way to a perception that any one person had skills of such value that the disqualification should be displaced.
Finally, it might be thought that the discretion is to be exercised only in “exceptional” circumstances, but that leaves unanswered the fundamental question of how to determine the relevance of allegedly “exceptional” circumstances in a way which is appropriate to the judicial power.
Because the factors leading to disqualification pursuant to subss 31(2) and (3) appear in analogous provisions elsewhere in the Act, it might be expected that a consideration of all such provisions would disclose an underlying rationale for the choice of those factors as the grounds for disqualification. However such an examination merely discloses anomalies which further confuse the matter. Unfortunately, they cannot be demonstrated without detailed reference to the Act. For the sake of accuracy I should say that I will hereafter refer only to the provisions relating to Regional Councils and the zones associated with them. I will not refer to the provisions concerning the Torres Strait Regional Authority and representation of the Torres Strait zone on ATSIC, although those latter provisions are substantially analogous to the former. It may assist in understanding what follows if I point out that:
·elections for Regional Councils are to be held every three years (see s 104); and
·elections of zone representatives are to take place within three months after the end of election periods for Regional Councils (see s 133).
As I have said, broadly similar disqualification provisions occur in various parts of the Act. Pursuant to s 102, a person is disqualified from standing for election, or being elected as a member of a Regional Council if he or she has been convicted and sentenced as therein prescribed. The prescribed circumstances are materially the same as those prescribed in s 31 concerning appointment as a commissioner. Section 122 deals with removal of a member of a Regional Council following a resolution of ATSIC, the grounds being broadly similar to the grounds of disqualification prescribed in ss 31 and 102, with two exceptions. Paragraphs 122(1)(aa) and (ba) extend the range of convictions resulting in removal to include convictions for two or more offences leading to one sentence of imprisonment for one year or longer (or three months or longer for offences of dishonesty). Provision is also made for termination of the appointment of a commissioner following conviction and sentence (subs 40(7)), but only in circumstances similar to those prescribed in ss 31 and 102, and without the provisions for multiple offences found in s 122. The reason for this distinction is not apparent, but it does not matter for present purposes.
Section 102 (concerning eligibility for election to a Regional Council) appears to contemplate that any application for exemption will be made prior to the election. Presumably it does not permit an exempting order nunc pro tunc. If so, then a favourable exercise of the discretion will place the Court in the position of being seen to endorse a candidate notwithstanding a criminal conviction. In the event of a negative exercise of the discretion, the Court will be seen to exclude a potential candidate who will, no doubt, have his or her own following. The position would be arguably worse if the discretion were invoked after the election. The Court would then be seen to exclude a popularly elected candidate.
Section 31 (concerning appointment as a commissioner) gives no indication as to when any application for exemption from disqualification should be made. It might be thought that it should be made, as in this case, after election as zone representative, but before appointment. The application might otherwise be “premature” in that the relevant candidate might not be elected as a zone representative, and so would not be eligible for appointment quite apart from his or her conviction and sentence. Once again, whenever such an application is made and determined, the Court will be exposed to the perception that it has interfered in a democratic election to admit or exclude a candidate on grounds which are not easily identified.
However it is in the inter-relationship of these various disqualifying provisions that anomalies arise. I ignore any complication caused by the extended range of relevant offences prescribed by s 122 as compared to the other disqualifying sections. I also exclude from consideration the complicating feature arising in this case from the fact that the conviction occurred prior to the Regional Council election, while the relevant sentence was imposed thereafter. The problems are best demonstrated by considering the procedure by which a person might proceed from candidacy for membership of a Regional Council to appointment as a commissioner and service in that office.
In the event that a person has no relevant disqualification, he or she is eligible for election to the relevant Regional Council. If successful, he or she is eligible for election as the relevant zone representative and thereafter, for appointment as commissioner for that zone. This process will be affected by a disqualifying conviction as appears below.
·Regional Council election occurring within two years of conviction (if not actually imprisoned) or release
The applicant will need the benefit of an order from the Federal Court pursuant to s 102(2)(c) authorizing election to the Regional Council. If elected, he or she will be qualified for election as a zone representative without further order. If successful, provided that, at the time at which appointment as a commissioner is to occur, the two year period has expired, he or she may be appointed without the benefit of an order pursuant to par 31(3)(c). If that period has not yet expired, it will be necessary to obtain such an order, notwithstanding the earlier order under s 102(2)(c).
·Conviction and sentence occurring after election to Regional Council, but before election as zone representative
The candidate will be liable to removal from the Regional Council pursuant to s 122 and upon removal, will not be eligible for election as a zone representative pursuant to s 131. In this case, there is no discretion to exempt from disqualification.
·Conviction and sentence occurring after election as zone representative, but before appointment
This is the present case. It seems that even if the candidate is removed from the Regional Council pursuant to s 122, there is no provision for removing him or her from the position of zone representative. However an order of this Court pursuant to s 31(3)(c) will be necessary before he or she may be appointed as a commissioner.
·Conviction and sentence occurring after appointment as commissioner
In those circumstances, the Minister “shall terminate the appointment of the Commissioner” (see subs 40(7)). There is no discretion to exempt from disqualification.
This rather tortuous exercise demonstrates a number of anomalies.
·In some circumstances it may be necessary to make applications under both par 102(2)(c) and par 31(3)(c) in connection with the same relevant disqualifying offence. This implies that notwithstanding similar wording, the considerations relevant to the exercise of the discretion under par 102(2)(c) are not the same as those relevant to the exercise of the discretion under par 31(3)(c). It is arguable that, given the more extensive nature of the responsibilities of an ATSIC commissioner as compared to those of a member of a Regional Council, this is appropriate. Nonetheless it is difficult to see how the respective sections can be said to prescribe ascertainable criteria suitable to guide the exercise of a judicial discretion if it is necessary to construe them having regard to the differences between the unspecified duties of a member of a Regional Council and the unspecified duties of a commissioner.
·Conviction and sentence after election to a Regional Council, but before election as a zone representative will result in removal from the Regional Council and consequential disqualification from eligibility for election as such a representative, with no opportunity to apply for judicial relief. On the other hand, conviction and sentence after election as a zone representative, but before appointment, will result in removal from the Regional Council, but appointment as a commissioner will be possible if the Court exercises its jurisdiction under par 31(3)(c) to grant exemption from disqualification.
·A similar anomaly is inherent in the fact that conviction and sentence after appointment as a commissioner will result in removal with no provision for exemption.
I am frankly at a loss to understand this Byzantine muddle, but confused drafting alone will not invalidate a legislative provision. A court must seek to ascertain the intended meaning. Nonetheless, these anomalies in the operation of various similarly worded provisions suggest that there is no consistent rationale underlying the circumstances of disqualification in the various, similarly worded, disqualification provisions. In the absence of such a rationale, it is unlikely that the Act implicitly prescribes any relevant considerations for the exercise of the discretion conferred by par 31(3)(c) or the other exempting provisions.
UNDERMINING THE CRIMINAL LAW
The exercise of the par 31(3)(c) discretion is inimical to judicial exercise for another reason. A primary function of the courts is to uphold the criminal law. Although this Court does not have a substantial role in that area, it should not be seen as undermining the process. In the absence of clear guidelines for the exercise of the discretion, the Court might appear to be simply treating a quite serious offence as not justifying disqualification from high public office.
CONCLUSIONS
It follows that I am of the view that the Act does not prescribe appropriate criteria for the exercise by the Court of the discretion purportedly conferred by par 31(3)(c), even having regard to, and giving appropriate weight to the fact that Parliament has seen fit to seek to confer jurisdiction upon the Court. It follows that the paragraph does not confer any part of the judicial power of the Commonwealth.
I have considered whether s 15A of the Acts Interpretation Act 1901 (Cth) might be relevant for present purposes. In particular I have had regard to the decision of the High Court in Gould v Brown (supra) at par 38 where Brennan CJ and Toohey J approved the earlier statement by Brennan J (as his Honour then was) in Re Dingjan; Ex parte Wagner (1994-1995) 183 CLR 323 at 339 as follows:
[Section] 15A can save a provision that is literally in excess of legislative power only if two conditions are satisfied …: first, that “the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law” … and, second, that the operation of the law upon the subjects within power is not changed by placing a limited construction upon the law … .
At par 75, Gaudron J said:
And it is well settled that a provision such as s 15A of the Acts Interpretation Act 1901 (Cth) cannot apply to effect the partial validity of law if that would result in the law’s changed operation or if it appears that “the law was intended to operate fully and completely according to its terms, or not at all” … .
For the reasons which I have already given, it is not possible to find a basis in the Act for so limiting the operation of par 31(3)(c). Section 15A cannot operate to save it. That paragraph is invalid.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 21 July 2000
Counsel for the Applicant: Mr A Vasta QC
Mr D KellySolicitor for the Applicant: Queensland Aboriginal & Torres Strait Islander Legal Services Secretariat Counsel for the Commonwealth Attorney-General: Mr C Horan Solicitor for the Commonwealth Attorney-General: Australian Government Solicitor Counsel for the Minister for Aboriginal & Torres Strait Islander Affairs: Mr M Swan Solicitor for the Minister for Aboriginal & Torres Strait Islander Affairs: Australian Government Solicitor Dates of Hearing: 30 March 2000
5 May 2000Date of Judgment: 21 July 2000
14