Clark v Honourable Amanda Vanstone [2004] FCA 1105

FEDERAL COURT OF AUSTRALIA Clark v Honourable Amanda Vanstone [2004] FCA 1105 ADMINISTRATIVE LAW – decisions of Minister – to give notice to holder of statutory elected office to show cause why he should not be suspended – to suspend him – whether valid decisions – Minister relied on conviction by County Court for offence of obstructing police, on commission of offence and on conduct in obstructing police – found misbehaviour in terms of determination specifying as misbehaviour a conviction for any offence for which a term of imprisonment may be imposed and in terms of 'general concept of misbehaviour' – applicant already suspended in respect of two convictions in Magistrates' Court – appeal resulted in conviction of one offence – whether power to initiate second suspension process – whether power to suspend based on a conviction could not be exercised until all avenues of appeal exhausted – whether Minister required to take into account all evidence before County Court and make her own findings of fact – meaning of 'misbehaviour' – whether power to specify conviction, or finding of guilt without conviction, of any offence for which sentence of imprisonment might be imposed – relevance of impact of conviction, or of conduct, on capacity to continue to hold office – whether failure to take into account a relevant consideration – whether jurisdictional error STATUTES – delegated legislation – validity – statutory power to specify by determination behaviour to be taken to be 'misbehaviour' for the purpose of the Act – specification as misbehaviour of conviction, or finding of guilt, of any offence for which a term of imprisonment may be imposed – whether determination may operate arbitrarily or capriciously by reason of differences in State and Territory laws – greater impact on indigenous than on non-indigenous people – effect of requiring higher standard of behaviour of office-holders in indigenous organisation than required by legislation in respect of office-holders generally – whether determination racially discriminatory – whether power to make determination should be construed as not authorising racial discrimination – whether determination in excess of power to make it – whether relevant clauses of determination invalid – whether saved by provision that determination is a disallowable instrument – whether saved by fact that power to suspend discretionary – whether determination can be read down – whether determination an instrument WORDS AND PHRASES – 'misbehaviour', 'instrument' Judiciary Act 1903 (Cth) s 39B Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 3, 4, 4A, 6, 7, 8, 10, 14, 15, 27, 30, 31A, 31, 33, 34, 38, 38, 40, 44, 46, 53, 55, 56, 75, 76, 77, 77G, 91, 92, 94, 95, 97, 101, 102, 119A, 122, 122A, 123, 123A, 124F, 127, 127C, 127G, 130, 131, 142R, 143L, 143S, 143Y, 144B, 144G, 144P, 144ZN, 147, 155, 157, 165, 191A, 191B, 191D, 191E, 191V, 191X, 192H, 194 Aboriginal and Torres Strait Islander Commission Amendment Act (No 1) 1999 (Cth) Sch 1 item 29 Commonwealth Authorities and Companies Act 1997 (Cth) ss 27F, 27J Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13 Racial Discrimination Act 1975 (Cth) ss 8, 10(1) Acts Interpretation Act 1901 (Cth) ss 33(1), 46(1)(b), 46(2), 46A, 48(4) Workplace Relations Act 1996 (Cth) Sch 1B s 141(1)(c)(iii), Sch 1B s 215(i), Sch 1B ss 212, 213 Constitution s 72(ii) Australian Securities and Investments Commission Act 2001 (Cth) Seat of Government Administration Act 1910 (Cth) Australian Law Reform Commission Act 1996 (Cth) National Health Regulations 1954 (Cth) Fuel Quality Standards Regulations 2001 (Cth) Therapeutic Goods Regulations 1990 (Cth) Australian Radiation Protection and Nuclear Safety Regulations 1999 (Cth) Patents Regulations 1991 (Cth) Companies Auditors and Liquidators Disciplinary Board Ordinance 1982 (ACT) Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 (Cth) cll 5(1)(k), 5(5)(b) ATSIC (Misbehaviour) Determination No. 2 (Cth) 3(1)(j), (3(2) Summary Offences Act 1966 (Vic) ss 14, 16, 17(1), 17(1)(d), 52(1) Summary Offences Act 1988 (NSW) ss 4, 4A Police Offences Act 1935 (Tas) ss 4, 6(1), 7, 7A, 12, 13, 58(1) Criminal Code (Qld) ss 70, 71, 230 Summary Offences Act 1953 (SA) ss 7, 13, 18, 18A Criminal Code (WA) ss 69, 70 Summary Offences Act (NT) ss 47, 47A, 53, 56(1), 56(1)(c) Crimes Act 1900 (ACT) ss 151, 152, 379, 396 Crimes Act 1900 (NSW) ss 546A, 546C Poor Relief Act 1815 (UK) Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to Re Kuzma; Ex parte The Public Trustee as Executor and Trustee of the Estate of Stanislav Kuzma [2002] WASC 303 referred to In Re Ward (1861) 30 LJ Ch 775 referred to Mile End Guardians v Sims [1905] 2 KB 200 referred to Holland v Peacock [1912] 1 KB 154 referred to Rice v University of Queensland (unreported, Industrial Relations Court of Australia, Madgwick J, 13 March 1998) referred to Firebrace v Indigenous Land Corporation [2000] FCA 1257 (2000) 35 ACSR 205 referred to Re Yanner [2000] FCA 975 (2000) 100 FCR 551 referred to Yanner v Minister for Aboriginal and Torres Strait Islander Affairs [2001] FCA 36 (2001) 108 FCR 543 referred to Harrington v Lowe (1996) 190 CLR 311 referred to Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 referred to Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 276 (2003) 78 ALD 65 distinguished Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Craig v State of South Australia (1995) 184 CLR 163 applied Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 applied International Convention on the Elimination of all Forms of Racial Discrimination art 1 and art 2 Parliamentary Commission of Inquiry Re The Honourable Mr Justice L K Murphy, Ruling on Meaning of 'Misbehaviour', Canberra, 19 August 1986 First Report of the Parliamentary Judges Commission of Inquiry, Brisbane, 1989 G Gardiner, Indigenous People and Criminal Justice in Victoria: Alleged offenders, rates of arrest and over-representation in the 1990s, Criminal Justice Monograph, Centre for Australian Indigenous Studies, Monash University, 2001 Royal Commission into Aboriginal Deaths In Custody, National Report, vol, 1991 Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report, 2003 G Gardiner, 'Indigenous Men and The Victoria Police: Alleged Offenders, Rates of Arrest and Over-Representation in the 1990s' (2001) Indigenous Law Bulletin 20 D Weatherburn, B Lind and J Hua, 'Contact with the New South Wales court and prison systems: The influence of age, Indigenous status and gender', Crime and Justice Bulletin, no 78, August 2003 B Thomas, Policing Public Order Offensive Language & Behaviour, The Impact on Aboriginal People, Aboriginal Justice Advisory Council, New South Wales, 1999 GEOFF CLARK v THE HONOURABLE AMANDA VANSTONE (IN HER CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS) V 17 of 2004 GRAY J 27 AUGUST 2004 MELBOURNE