Churches, Steven --- "Minister Misdirected his 'General Directions' to ATSIC: Aboriginal Legal Service v Herron" [1996] AboriginalLawB 91; (1996) 3(87) Aboriginal Law Bulletin 12

• Minister Misdirected His ‘General Directions’ To Atsic: Aboriginal Legal Service V Herron

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Minister Misdirected his ‘General Directions’ to ATSIC:
Aboriginal Legal Service v Herron

Aboriginal Legal Service v Herron

Full Federal Court

Unreported

Black CJ, Tamberlin and Sackville JJ

18 September 1996

Casenote by Steven Churches

The case involved the question of how far the Minister for Aboriginal and Torres Strait Islander Affairs can go in directing ATSIC in its decisions to grant or lend money to subsidiary bodies, in this case in particular, the Aboriginal Legal Service Ltd based in Redfern, Sydney.

On 10 April 1996 the Minister, Senator John Herron, wrote to ATSIC giving three particular directions, which were in essence as follows:

1. ATSIC not to make a loan or grant of money to a body unless that body had made available certain financial information relating to that body to a person to be appointed by the Minister and known as the 'Special Auditor';
2. ATSIC not to make a loan or grant to such a body, if the Special Auditor had notified both ATSIC and the Minister that that body is not a fit and proper body to receive public money; and
3. ATSIC to be stayed from the making of any grant or loan of money to such a body when the Special Auditor had notified ATSIC and the Minister of the Special Auditor's opinion, that further consideration of whether that body is a fit and proper body to receive public money is warranted.

The Minister claimed to be able to make such directions under s12(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) which provides:

'The Commission [ATSIC] shall perform its functions and exercise its powers in accordance with such general directions as are given to it by the Minister in writing'.

The question for the Full Court was whether the directions given by the Minister to ATSIC fitted into the description in s12 of 'general directions'.

All three judges (each gave a separate judgment) were of the view that the Minister's directions were not 'general'. Chief Justice Black, for example, thought that directions cease to be acceptably general when they 'have the practical effect of giving to another person what amounts to the capacity to veto the exercise, in a particular case, of any of the powers conferred'. His Honour went on to say:

'In my view, this will be the case where, as here, the "veto" is exercisable by reference to that other person's own findings and opinions on a matter committed to the decision of the Commission. To give such a direction is not to give a general direction as to the exercise of a power by a body; rather, it is to take away elements of the exercise of a power that has been committed to a particular body and to commit them to a person upon whom the Parliament has not conferred the power'.

Both Tamberlin and Sackville JJ were in agreement that the use of a third party to effectively make decisions which, under the statute, were decisions for ATSIC to make, meant that the directions given by the Minister were beyond power. Tamberlin J, and Sackville J to an even greater extent, referred to the statutory objectives of the Act in reasoning why ATSIC should not be intruded upon in its decision making process. Sackville J said:

'The express statutory objects are to promote self management, self-sufficiency and participation by Aboriginal persons and Torres Strait Islanders. These strongly suggest that caution should be exercised before classifying as "general" a direction establishing a procedure for a third party to declare individual bodies ineligible to receive grants from the Commission, especially where the third party is to exercise a judgment as to whether the particular body is fit and proper to receive public money'.