FEDERAL COURT OF AUSTRALIA

Vanstone v Clark [2005] FCAFC 189

SUMMARY

THE HONOURABLE AMANDA VANSTONE (in her capacity as MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS) v GEOFF CLARK

V1148 of 2004

BLACK CJ and WEINBERG J

6 SEPTEMBER 2005

MELBOURNE

1               In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today.  This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court.  The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at <http://www.fedcourt.gov.au> together with this summary.

2               This is an appeal from orders made by a judge of the Court setting aside the decision of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) to suspend Mr Clark from office as a Commissioner of the Aboriginal and Torres Strait Islander Commission (“ATSIC”).  The Minister suspended Mr Clark from office because of his conviction for the offence of obstructing police arising from his involvement in events at the Criterion Hotel in Warrnambool on 2 May 2002.

3               Under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (“the ATSIC Act”)the Minister had power to specify conduct as constituting “misbehaviour” for the purposes of the ATSIC Act.  The Minister’s predecessor made a Determination that defined misbehaviour by reference to a conviction for an offence for which there is a penalty of imprisonment. 

4               The Minister gave Mr Clark reasons for her decision to suspend him in which she said that his conviction amounted to “misbehaviour” by virtue of the Determination and was also within the “general concept of misbehaviour” in s 40(1) of the ATSIC Act.  The primary judge found that the Determination had to be read down to avoid it discriminating against Aboriginal people in contravention of the Racial Discrimination Act 1975 (Cth) and for other reasons.  The primary judge concluded that the Minister’s decision was invalid because she had not interpreted the Determination correctly and because she had not correctly interpreted and applied the meaning of “misbehaviour” as it is used in the ATSIC Act.

5               The Minister then brought this appeal to a Full Court.

6               After the appeal had been heard, the third member of the bench, Justice Selway, died but the parties consented to the appeal being determined by the remaining members of the court, as permitted by s 14(3) of the Federal Court of Australia Act 1976 (Cth).

7               The Chief Justice and Justice Weinberg have delivered separate judgments.  They agree that the appeal should be dismissed, but on one point they have reached the same conclusion for different reasons. 

8               Mr Clark first argued that since the ATSIC Act was about to be largely repealed, the appeal was futile and that the Court should not proceed to hear it.  Since the hearing, the ATSIC Act has in fact largely been repealed, but both judges have concluded that that is no reason why the appeal should not proceed.  They have therefore rejected Mr Clark’s submission that the appeal should be stayed.

9               Each of the judges has decided that the Determination relied upon by the Minister in suspending Mr Clark was invalid.  The Chief Justice has concluded that it was invalid because it did not “specify” misbehaviour as required by the provisions of the ATSIC Act.  Justice Weinberg differs from the Chief Justice on that point, but nevertheless considers that the Determination is invalid because it is not “proportionate” as the law requires.  Since the Determination is invalid on either view, the Judges have held that it cannot support the Minister’s decision to suspend Mr Clark from office.

10            Justice Weinberg has disagreed with the primary judge about the effect of the Racial Discrimination Act.  He considers that the Determination was not racially discriminatory and not in breach of the Racial Discrimination Act and did not need to be read down for that reason.  The Chief Justice has agreed with Justice Weinberg on that point.

11            On the final point, which is whether Mr Clark’s conduct fell within the general concept of “misbehaviour” within the meaning of the ATSIC Act, both the Chief Justice and Justice Weinberg are of the view that “misbehaviour” in such a case must relate to fitness for office and they agree that the Minister’s reasons do not show that she has considered the question according to the correct view of what misbehaviour is in that context.  They therefore agree that the appeal should be dismissed.

12            Justice Weinberg explains at [247] in his reasons that he does not intend to suggest that Mr Clark’s conduct should be viewed as anything other than serious, but explains that this is not the point.  The point is whether the Minister considered the conduct against the background of a particular statutory scheme.