wes QUDGM"'~ No, 2620-87 CATCHWORDS ADMINISTRATIVE LAW - Aboriginal Development Commission Act 1980 (Cth) - whether Directions given by the Minister pursuant to s.11 valid - proposed reorganisation of the Department of Aboriginal Affairs and Commission - opposition by members of the Commission - statutory provisions empowering Minister to give directions. PROCEDURE - determination of separate question of law pursuant to Order 29, Rule 2 of the Federal Court Rules. Federal Court Rules, Order 29, Rule 2 Aboriginal Development Commission Act 1980 (Cth), ss.3, 8, S(1)(c) and (d), rr T6(5) ABORIGINAL DEVELOPMENT COMMISSION AND OTHERS. v. G L E MINISTER OF STATE FOR ABORIGINAL AFFAIRS No. G954 of 1985 Davies J. 19 May 1988 Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G954 of 1988 ee eee GENERAL DIVISION BETWEEN: ABORIGINAL DEVELOPMENT COMMISSION First Applicant LENA _ANNAI PASSI, JOHN EDWARD ATKINSON, ANDREW GEORGE THOMAS, WARIA JOYCE THOMPSON, HELEN Sa THSARRARCE WILLIAMS, BEHN WARD and PHILLIP YANNER Second Applicants OSSIE BENJAMIN CRUSE Third Applicant AND: GERARD LESLIE HAND, THE MINISTER OF STATE FOR ABORIGINAL AFFAIRS First Respondent AND: TERENCE JOSEPH O' SHANE LOIS O'DONOGHUE CBE AM, CHARLES NELSON PERKINS, GETANO BELFORD LUI JR, ESTHER CARROLL, PETER SHANE YU, ROBERT LEE and PATRICK LIONEL DODSON Second Respondents CORAM: Davies J. DATE: 19 May 1988 PLACE: Sydney MINUTES OF ORDER THE COURT ANSWERS the question set aside for separate determination pursuant to Order 29 Rule 2 of the Federal Court Rules as follows:- Question: Whether the Directions given by the Minister for original Affairs on 27 April 1988 were and are valid. Answer: The Directions are to be read and understood subject Eo g.11(2) of the Aboriginal Development Commission Act 1980 (Cth). As so read, the Directions were and are valid. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G954 of 1988 —~ eee GENERAL DIVISION BETWEEN: ABORIGINAL DEVELOPMENT COMMISSION First Applicant LENA ANNAI PASSI, JOHN EDWARD ATKINSON, ANDREW E E THOMA MARTA JOYCE THOMPSON, HELEN DJIMBARRWALA WILLIAMS, BEHN WARD and PHILLIP YANNER Second Applicants OSSIE BENJAMIN CRUSE Third Applicant AND: GERARD LESLIE HAND, THE MINISTER OF STATE FOR ABORIGINAL AFFAIRS Pirst Respondent AND: TERENCE JOSEPH O' SHANE LOIS O'DONOGHUE CBE AM, CHARLES NELSON PERKINS, G. B D LUI JR ESTHER CARROLL, PETER SHANE YU, ROBERT LEE and PATRICK LION D ON Second Respondents CORAM: Davies J. DATE: 19 May 1988 PLACE: Sydney REASONS FOR JUDGMENT On 27 April 1988, the Minister for Aboriginal Affairs, 2. The Honourable Gerard Leslie Hand, gave the following Directions to the Aboriginal Development Commission pursuant to s.11 of the Aboriginal Development Commission Act 1980 (Cth)("the Act"):- "1. The Commission shall co-operate with the Minister for Aboriginal Affairs, the Department of Aboriginal Affairs and all other bodies in respect of which the Minister has Ministerial responsibility in relation to the proposed reorganisation of the Department and other bodies in respect of which the Minister has Ministerial responsibility required to facilitate the formation of the proposed Aboriginal and Torres Strait Islander Commission. 2. 'The Commission shall provide to the Minister, the Secretary of the Department or the Chairman of the Aboriginal and Torres Strait Islander Commission Task Force such information as they may reasonably require from the Commission to facilitate the formation of the Aboriginal and Torres Strait Islander Commission. 3. The Commission shall be represented by persons each of whom shall be either a member of the Commission or such senior officer or officers of the Commission as shall be appropriate at meetings called from time to time by the Minister, the Secretary, the Chairman of the Aboriginal and Torres Strait Islander Commission Task Force or by persons authorised in writing by any of them to call such meetings, being meetings the purpose of which is to discuss, at such place as is, in the particular case, specified by the Minister, the Secretary, the Chairman or authorised person, the reorganisation of the Department and other bodies in respect of which the Minister has Ministerial responsibility required for the formation of the Proposed Aboriginal and Torres Strait Islander Commission." On 10 May 1988, the Commission resolved "that the Directions are invalid" and confirmed "their current position of not cooperating in the implementation of ATSIC [the Aboriginal and Torres Strait Islander Commission]." On 11 May 1988, the Chairman of the Commission wrote to the Minister as follows:- 3. "On a number of occasions the Commission has provided you with its views on your proposal as outlined in 'Foundations for the Future'. On two occasions the Commission provided you with formal advice under s.8(f£) of the ADC Act. In essence this advice was that your proposal would not further the social and economic development of Aboriginals and Commissioners put forward an option which they believe would achieve an improvement in this regard. At a Commission meeting of 10 May, Commissioners considered your directions under s.11 of the ADC Act which you tabled in Parliament on 27 April 1988. On the basis of legal advice, the Commissioners unanimously resolved to proceed in seeking a declaration from the Federal Court to determine the validity of your directions. The Commissioners further resolved to maintain their current position with regard to opposition to ATSIC and that ADC staff will not participate in ATSIC Task Force activities until the validity of s.11 directions is determined by the Court." On the following day, 12 May 1988, the Minister, pursuant to s.16(5) of the Act terminated the appointments of the second applicants, who had been appointed under 8.16 to act as members of the Commission and of the third applicant who had been appointed to act as Deputy Chairman of the Commission. Proceedings were then initiated in this Court by the Aboriginal Development Commission, in which the second and third applicants subsequently joined, for declarations that the Directions given by the Minister on 27 April 1988 were invalid and for orders setting aside the decision to terminate the appointments of the second and third applicants. On its transpiring that the Minister, on Friday, 13 May 1988, had appointed the second respondents to act as members of the Aboriginal Development Commission, those persons were joined as respondents and an order was sought setting aside their appointments. 4. When the matter came before the Court on 16 May 1988, Mr D.J. Biggins Q.C. and Mr R.G. Forster of counsel appeared for the Commission and for the second and third applicants. Mr A.M. Gleeson Q.C., and Miss R.M. Henderson of counsel appeared for the Minister, Mr T. Robertson of counsel appeared for the second respondents but subsequently announced that his clients were prepared to abide the order of the Court and sought leave to withdraw. That leave was granted. As the matter was an urgent one, it was ordered, pursuant to Order 29, Rule 2 of the Federal Court Rules, that the issue whether the Directions given by the Minister on 27 April 1988 were and are valid be determined separately from the other issues in the application and that that question be heard and determined forthwith. These reasons for decision deal solely with that issue. By way of background, I should mention that the Aboriginal Development Commission was established under the Act to further the economic and social development of Aboriginals and, in particular, to assist individuals and groups of Aboriginals to acquire land and to engage in business and also to assist Aboriginals to obtain finance for housing and other personal needs. The funding of the Commission comes primarily from the Commonwealth Government. The Commission comprises ten members, all of whom are Aboriginals. In the Act a reference to the word "Aboriginal" is read as a reference to a member of the Aboriginal race of Australia and also to any person who is a 5. descendant of an indigenous inhabitant of the Torres Strait Islands. Recently, the Minister for Aboriginal Affairs has developed a proposal for the reorganisation of his department, the Department of Aboriginal Affairs, and for the creation of a new body, the Aboriginal and Torres Strait Islander Commission, which presumably will take over all or some of the functions presently performed by the Aboriginal Development Commission. The members of the Commission are opposed to the proposal for reorganisation, believing it not to be in the best interests of Aboriginals. They have declined so far to co-operate in the reorganisation. That lack of co-operation led to the issue of the Directions which I have set out. Relevant provisions of the Act are as follows:- "3. The purpose of this Act is to further the economic and social development of people of the Aboriginal race of Australia and people who are descendants of indigenous inhabitants of the Torres Strait Islands and, in particular, (as a recognition of the past dispossession and dispersal of such people) to establish a Capital Account with the object of promoting their development, self-management and self-sufficiency. 8. The functions of the Commission are, subject to and in accordance with this Act, to further the economic and social development of Aboriginals and, in particular, but without limiting the generality of the foregoing - (a) to assist communities and groups of Aboriginals to acquire land; (b) to assist Aboriginals to engage in business enterprises; (c) to assist Aboriginals to obtain finance for housing and for other personal needs, and to provide such finance; (d) to assist in the training of Aboriginals in relation to matters related to the functions of the Commission; (e) to administer and control the Capital Account; (£) to give advice and make recommendations to the Minister with respect to the furtherance of the economic and social development of Aboriginals; and (g) such other functions in connection with the furtherance of the economic and social development of Aboriginals as the Minister determines by notice in writing given to the Commission. 9.(1) The Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its functions and, in particular, but without limiting the generality of the foregoing, has power - (c) to co-operate with States, the Northern Territory and local government bodies, and with other persons and organizations concerned with Aboriginal development; {d) to collect, or arrange for the collection of, information relating to the performance of the functions of the Commission; and 11.(1) The Commission shall perform its functions and exercise its powers in accordance with such general directions as are given to it by the Minister in writing. (2) Sub-section (1) does not empower the Minister to give directions relating to the content of any advice, information or recommendation that may be given by the Commission to a Minister, Department or authority of the Commonwealth or of a State or Territory. (3) Subject to sub-section (4), the Minister shall cause a copy of any direction given by him under sub-section (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given. (4) A copy of a direction laid before the Parliament in accordance with sub-section (3) shall not disclose any matters known to the Commission to be held sacred by Aboriginals or by a particular community or group of Aboriginals." It may also be noted that many specific powers are conferred upon the Minister by the Act. I need not set them out. Increasingly there are found in legislation of the Federal Parliament instances whereby Ministers are empowered to give directions with which members of their departments or bodies under the aegis of their authority are bound to comply. Somewhat unhappily, the provisions for the giving of such directions vary in their form and content. In some statutes, the Minister is conferred an unfettered discretion to give directions. For example, s.6 of the Fisheries Act 1952 provides:- "6. The Secretary or his delegate or a delegate of the Minister is, in the exercise of his powers and the performance of his functions under this Act, subject to the directions of the Minister." There are many like provisions to be found in the statutes. Such a provision enables the Minister to give not only directions with respect to matters of policy or by way of guidelines, but also directions with respect to particular cases or problems. Under such a provision, the Minister may direct the decision to be made in a particular case. Such a power is found in s.29(1) of the Trade Practices Act 1974 but is there limited with respect to decisions in individual cases. The section reads:-— "29.(1) The Minister may - 8. (a) give directions as to matters to be given special consideration by the Commission in determining applications for authorizations or in making decisions for the purposes of paragraph 93(3)(a) or (b); and (b) give directions to the Commission in connexion with the performance of its functions or the exercise of its powers under this Act, not being directions relating to the performance of its functions or the exercise of its powers under section 653, 65K, 65M or 65N or Part VII in relation to individual cases, and the Commission shall comply with any directions so given." On occasion, the word "directions" is not used but the word "guidelines" is found. Section 124H(1) of the Health Insurance Act 1973 provides:- "124H. (1) The Minister may, by instrument in writing, make guidelines to be applied by Committees with respect to the making of relevant determinations." In many Federal statutes the term "general directions" appears. The adjective "general" indicates that the direction must be one which is not directed merely to a particular case or to a particular decision but is one to be applied generally. In this respect, a general direction is similar to a binding guideline. It sets the structure of activity or decision-making. However, both a guideline and a general direction may be more or less specific, having regard to the terms which it uses and the concept which it conveys. Section 11(1) of the Act empowers the Minister to give general directions to the Commission. The sub-section provides that the Commission shall perform its functions and exercise its 9. powers in accordance with such general directions. The sub-section adopts words of its own. Rather than expressing the power of the Minister to give directions and infer the obligation to give effect to such directions, the section implies the power of the Minister to give directions and expresses the obligation of the Commission to give effect thereto. Section 11(1) is an ample provision and reflects the point that, though the Commission is a statutory authority of the Commonwealth, the Minister has overall control of and responsibility for it. Section 11(2) expressly provides that the section does not empower the Minister to give directions relating to the content of any advice, information or recommendation given by it to a Minister, Department or authority of the Commonwealth or of @ State or Territory and to this extent qualifies and limits the power conferred by s.11(1). The words "advice, information or recommendation" are not technical or formal words. They speak in ordinary parlance and encompass the informal communication of views held by the Commission. As to 8.8 of the Act, much of the argument before the Court was directed to the question who had the power to determine what action would further the economic and social development of Aborigines. In the absence of a notice in writing given pursuant to 8.8(g) or a direction given pursuant to s.il, that question is solely one for the Commission, provided that its actions are not so unreasonable as to infringe the Wednesbury principle. See 10. Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223, and ss.5(2)(g) and 6(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). But the matter is not left entirely to the Commission, for s.8 is subject to the remainder of the Act including 8.11. The Minister may, under s.8(g), give a notice in writing to the Commission as to a function which the Minister considers will further the economic and social development of Aborigines and under s.11 he may give general directions as to the performance of that or any other function. The Commission is obliged to comply with any general direction given by the Minister under s.11. Thus, when the Commission is the decision-maker, it is subject to the Act, to any notice given by the Minister under s.8(g) and to any general direction given by the Minister under g.11(1) but otherwise it may and should form its own judgment as to what course will further the economic and social development of Aboriginals or will otherwise further the aims set out in paras. (a) and (f£) of 8.8. On the other hand, in deciding to give a notice under 8.8(g) and in formulating a general direction under s.11(1) it is for the Minister, being the decision-maker, to form his view as to what course will further the economic and social development of Aboriginals, or will otherwise further the objects of the Act. In the present case, it was submitted by counsel for the applicants that no function of co-operation in the reorganisation of the Department of Aboriginal Affairs and in the establishment 11. of the Aboriginal and Torres Strait Islander Commission had been conferred upon the Commission pursuant to s.8(g) and that, as the Commission did not consider the reorganisation and the establishment of the new Commission to be a step such as to promote the welfare of the Aborigines, co-operation in that matter was not a function of the Commission. Mr Gleeson submitted, to the contrary, that the performance of the function had been directed under s.11 and that it mattered not whether the Minister gave a notice under s.8(g) or general direction under 8.11. I have found it unnecessary to resolve this issue. The Commission has certain powers and they include the powers specified in paras 9(1)(c) and (d) which I have set out above, namely to co-operate with persons and organisations concerned with Aboriginal development and to collect and disseminate information relating to the performance of the functions of the Commission. The power to collect information impliedly confers the power to use and distribute that information in an appropriate way. Mr Gleeson submitted that the Directions given by the Minister related to the exercise of these powers. I agree with that submission. Direction 2 is a clear case. The Commission is empowered to co-operate with other persons and bodies concerned with Aboriginal development. It is empowered to collect and 12. disseminate information. Direction 2 merely directs the Commission to provide information reasonably required by the Minister, his Department and bodies for which he has responsibility. All the persons and bodies nominated in Direction 2 are persons or bodies concerned with Aboriginal development. The provision of information to them as reasonably requested is a form of co-operation with then. Direction 2 is therefore a direction as to how the Commission should exercise powers which are conferred upon it by 8.9. The Commission is obliged by s.11 to exercise its powers in accordance with such a direction. Direction 2 is a general direction for it is not directed to a decision in a particular case or even to the content of views which may be expressed by the Commission or by members or staff of the Commission. The Direction is no more than a direction as to a course of activity which is empowered by 6.9. The Direction gives more detail and specificity to the general power, but that is of the nature of a general direction. A general direction may require the Commission to undertake an activity of a specified character. What a general direction may not do is direct its attention to a specific case arising for decision before the Commission. The above comments apply with equal force to Directions 1 and 3. However, in respect of these, there is the further question whether the Directions infringe the limitation imposed by s.11(2), namely, as to whether they direct the Commission as 13. to the content of any advice, information or recommendation that may be given by the Commission to the Minister or a Department or authority of the Commonwealth. There is a difficulty with the words appearing at the end of Direction 1, namely, "required to facilitate the formation of the proposed Aboriginal and Torres Strait Islander Commission" and the somewhat similar words which appear in the end of Direction 3. If these words were to be read as requiring the Commission not only to cooperate in the reorganisation but positively to facilitate and promote the reorganisation, they might breach the provisions of s.11(2), which preclude the Minister from giving directions relating to the content of any advice, information or recommendation that the Commission may give. It was suggested that the words "and is" should be inserted between the words "responsibility" and "required" in Direction 1 and that similar words or words to like effect should be read into Direction 3. However, I am satisfied that the reading suggested by Mr Gleeson, namely that the adjective "required" relates in Direction 1 to the noun "reorganisation" and in Direction 3 to the noun "meetings", is correct. So read, the Directions do not require the Commission to promote the reorganisation but merely to cooperate with other persons in relation to the reorganisation and to give such information as may reasonably be required. Were the position otherwise, the Directions would breach s.11(2) for the co-operation which is directed necessarily would 14. involve the Commission, its members and staff in communications and discussion involving the giving of advice and recommendations to the Minister, his Department and bodies under the aegis of the Minister and to officers of those bodies. The Minister is expressly prohibited from giving directions as to the content of any such advice or recommendation. I take that prohibition to encompass advice, information or recommendation given by a member or officer of the Commission in his capacity as such. If in pursuance of Directions 1 and 3, members and officers of the Commission were to attend meetings or discussions with respect to the proposed reorganisation, they would, because of s.11(2) be entitled, if asked to express a view, to state the view of the Commission, namely, that the proposed reorganisation or some aspect thereof was not in the best interests of the Aboriginal community. A like issue arises as to the effect of the direction to co-operate. The word "co-operate", in its strictest sense, means to work together to an end or purpose. In my opinion, the Minister is not empowered to direct the Commission to work in committee positively and favourably toward the achievement of the proposed reorganisation. The Commission, its members and officers are entitled to give such advice and to make such recommendations as they see fit. However, the word "co-operate" is appropriately used in a looser sense to encompass acting in conjunction in a common activity. In many decisions in the United States, the 15. requirement of co-operation appearing in insurance policies has been held to require of a claimant little more than to give a truthful account respecting the insured event and such statements and particulars as may reasonably be required. See, eg., United States Fidelity & Guaranty Co. v. Wyer 60F.2d 856; Coleman v. New Amsterdam Casualty Co. 247 N.Y. 271; and Wheeler v. Lumbermen's Mutual Casualty Co., 5 F. Supp. 193. The Minister is entitled to require of the Commission, its members and staff co-operation in this sense. The Minister is entitled to require of the Commission that by its members or staff it will attend such meetings as may be required to achieve the proposed reorganisation and that its members and staff will fully and fairly disclose all matters of relevance which may be sought of them. Such a requirement does not go to the content of any advice or recommendation given by or on behalf of the Commission, which is a matter for the Commission. In my opinion, Directions 1 and 3 should be read subject to the power under which they were given and therefore to read them in such manner as to maintain their validity, providing that meaning is reasonably open, as in the present case, it is. To so read them is merely to read them in context, in the setting in which they were made. As is stated in Brooms Legal Maxims (Maxwell and Son, London, 1884), 6th Ed. at p.539:- "... it is an established rule, in construing a statute 4 that the intention of the law-giver and the meaning of the law are to be ascertained by viewing the whole and every part of the Act. One part of a statute must be so construed by another that the whole may, if possible stand... * 16. The same principle applies to delegated legislation and the exercise of powers. As is stated in Bennion's Statutory Interpretation (London, Butterworths, 1984), at p.147:- "The court will assume that the delegate intended to conform to the rule of primary intention, and will construe ambiguous provisions in the instrument accordingly. 'In other words, the courts will not be astute to ascribe to the person by whom the legislation was made an intention to make ultra vires provision.' {Halsbury's Laws (4th edn) vol 44 para 1002 n 3. ...}" The word "co-operate" in Direction 1 should therefore be read in the looser sense to which I have referred and as not requiring the members and officers of the Commission, on attendance at meetings, to put any view or to give any advice, information or recommendation other than that which is honestly held and which is supported by the Commission. Directions 2 and 3 should be read accordingly. As so read, the Directions are valid. The question will therefore be answered:- "The Directions are to be read and understood subject to g.11(2) of the Aboriginal Development Commission Act 1980 (cth). As so read, the Directions were and are valid." I certify that this and the 15 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr J ice Davies. Associate: Date: May 1988 Counsel for the applicants: Solicitors for the applicants: 17. Counsel for the lst respondent: Counsel for the 2nd respondents: Solicitor for the 1st respondent: Solicitor for the 2nd respondents: Dates of hearing: Mr T.J. Higgins Q.C. with Mr R.G. Forster Messrs Kemp Strang & Chippindall Mr A.M. Gleeson Q.C. with Miss R.M. Henderson Mr T. Robertson Australian Government Solicitor W.H. Whyburn and Associates 16-17 May 1988