Blurton, M. v Commonwealth Minister for Aboriginal Affairs

[1991] FCA 258

Re: MICHAEL BLURTON; SEPTU BRAHIM; LEN COLBUNG; SPENCER RILEY and WILLIAM
YARRAN
And: THE COMMONWEALTH MINISTER FOR ABORIGINAL AFFAIRS
No. WA G16 of 1991
FED No. 258
Aborigines - Administrative Law - Elections
101 ALR 350
29 FCR 442

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Aborigines - Aboriginal and Torres Strait Islanders Commission - Regional Council elections - alleged failure to conduct secret ballot - whether question respecting qualifications of members or vacancies on councils - whether referable by Minister as such under Act - whether refusal to so refer is reviewable.

Administrative Law - decision made under an enactment - decision allegedly in excess of power - whether such decision is reviewable.

Elections - secret ballot - failure to comply - whether question respecting qualifications of members or vacancies arises - history of terminology.

Aboriginal and Torres Strait Islander Commission Act 1989 s.7, s.100, s.102, s.109, s.110, s.113, s.140, s.17

Administrative Decisions (Judicial Review) Act 1977 s.5

Federal Court Rules O.29

Commonwealth Electoral Act 1918 s.353, s.376

Representation of the People Act 1983 (UK) s.120

Australian Constitutions Act (No. 1) 1842

Australian Constitutions Act (No.2) 1850

British North America Act s.4

Constitution Act Amendment Act 1958 (Vic)

Erskine May - Parliamentary Practice 21st Edition p 36

Quick and Garran - Annotated Constitution of the Australian Commonwealth

Evans v Friemann (1981) 35 ALR 428

Australian National University v Burns (1982) 43 ALR 25

Emanuele v Cahill (1987) 71 ALR 302

TVW Enterprises v Duffy (unrep; 28/3/85; Toohey J.)

Carl Zeiss Stiftung v Herbert Smith and Co. (1969) 1 Ch 93

Re Wood (1988) 167 CLR 145

Holmes v Angwin (1906) 4 CLR 297

R. v Hutchins (1959) SASR 189

Re Walsh (1971) VR 33

HEARING

PERTH

#DATE 17:5:1991

Counsel for the Applicant: Dr J.L. Cameron

Solicitors for the Applicant: Aboriginal Legal Service of W.A. Inc.

Counsel for the Respondent: Mr P. Thompson (on 12 April 1991) C.J.

Pullin QC with Mr P. Thompson (on 24 April 1991)

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The application is dismissed.

The applicants pay the respondent's costs of the application.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The Aboriginal and Torres Strait Islander Commission was established by the Aboriginal and Torres Strait Islander Commission Act 1989 ("ATSIC Act"). The Commission has a number of functions, defined by s.7 of the Act. They include the formulation and implementation of programmes for Aboriginal persons and Torres Strait Islanders, monitoring the effectiveness of such programmes, developing policy proposals to meet National, State, Territory and Regional needs and priorities of Aboriginal persons and Torres Strait Islanders and assisting, advising and co-operating with their communities, organisations and individuals at National, State, Territory and Regional levels. The Commission also has the function of advising the Minister on matters relating to Aboriginal and Torres Strait Islander affairs and the co-ordination of activities of other Commonwealth bodies that affect those people.

1. The Commission consists of a Chairperson and 19 members appointed by the Minister (s.27(1)). Of the 19 so appointed, 17 are elected, each representing one of 17 zones defined in Schedule 1 to the Act (s.27(3)). Within each zone there is a number of regions designated in the same Schedule and for each region a Regional Council is established (s.92). Each zone representative is elected by and from the members of the Regional Councils in that zone (s.113). The Regional Councils have their own functions including the formulation of regional plans for improving the economic, social and cultural status of Aboriginal and Torres Strait Islanders resident within their respective regions. The Councils also assist, advise and co-operate with the Commission, other Commonwealth bodies and State, Territory and local government bodies in the implementation of the regional plan and make proposals for Commission expenditure in their regions.

2. The Act provides for the conduct of Regional Council elections in accordance with Regional Council Election Rules made by the Minister and the requirements of the Act itself, one of which is that voting shall be by secret ballot. Disputes in relation to regional and zonal elections are regulated by the provisions of Schedule 4 to the Act. Under the terms of that Schedule, the validity of elections may be disputed by petition to the Federal Court and such petition may be signed by a candidate at the election or a qualified elector. A petition may also be filed by the Australian Electoral Commission. There is provision for the Minister and the Commission to appear and be represented in petition proceedings generally. And s.17 of the Fourth Schedule empowers the Minister to refer to the Court any questioning respecting the qualification of a member of a Regional Council or a vacancy in a Regional Council.

3. On 14 December 1990, a Principal Legal Officer with the Aboriginal Legal Service of Western Australia (Inc.) wrote to the Minister for Aboriginal Affairs expressing concern that the secret ballot provisions of s.109 had been breached by a requirement that electors endorse their names on the voter card envelope in which ballot papers were to be placed. The letter inquired whether the Minister was prepared to refer the question to the Federal Court for determination pursuant to the powers contained in Schedule 4. The Minister responded on 15 January 1991 saying that the secrecy provision had not been breached and stating that it was not his intention to have the matter referred to the Federal Court for determination.

4. It appears that a further letter was sent on 10 January 1991 alleging that the requirements of rr.74 and 76 of the Regional Council Election Rules conflict with the requirements of s.109. The Minister replied on 13 February 1991 along the same lines as his reply of 15 January. In the meantime, a letter dated 18 January 1991 was sent by the Aboriginal Legal Service of Western Australia asking the Minister to provide reasons for his decision not to refer the matter to the Federal Court. No such reasons were provided except to the extent that the Minister's replies could be so regarded. In the event nothing turns on the absence of s.13 reasons.

5. The present application was instituted on 25 February 1991. It sought review of the Minister's decision of 15 January 1991 refusing to accede to the request of the applicants that he refer to this Court for determination the qualifications of members elected to the Regional Councils pursuant to the elections conducted in November 1990 in the light of the applicants' claim that those elections were conducted in breach of the requirements of s.109 of the Act that such elections be conducted by way of secret ballot. The application relies upon grounds of breach of natural justice, improper exercise of the power conferred by s.17 of Schedule 4 to the Act, error of law and absence of any evidence or other material to justify the making of the decision. Various orders are claimed. The first of these is an order directing the Minister to consider the request that "he Petition the Court disputing the Aboriginal and Torres Strait Islander Commission Regional Council Elections according to law". Presumably the reference to "Petition" is a drafting error and what was intended was an order that he reconsider the request for a reference to the Court. The second order claimed is a declaration that certain of the Regional Council Election Rules are ultra vires and void in so far as they are inconsistent with the provisions of s.109 of the Act. Thirdly, mandamus is sought requiring the Minister to direct the Australian Electoral Commissioner to conduct the elections by way of "unambiguously secret ballot and according to law".

6. It was conceded at the threshold that the Minister, in refusing to refer the question raised by the Aboriginal Legal Service to the Court, had made a decision within the meaning of the Administrative Decisions (Judicial Review) Act, and I think that concession was correct. It was then submitted, however, that if the question which the Minister was asked to refer under s.17 did not in fact fall within the framework of that section, then a purported decision to refer or not refer it was beyond the power conferred by the section and being beyond power, it was submitted, the decision was not made "under an enactment" and therefore was not a decision to which the Administrative Decisions (Judicial Review) Act applies. And that was the major premise of the objection to competency. It was then submitted that the question raised by the Aboriginal Legal Service, going to the compliance of the electoral procedures with the secret ballot requirement, was not a question respecting the qualifications of a member of a Regional Council or a vacancy in a Regional Council under s.17 of the Fourth Schedule. And that was the minor premise. The submission so made raised the question, central to this application, whether a failure of the electoral process to comply with s.109 of the Act relating to the secrecy of the ballot raises a matter respecting the qualifications of members of the Regional Council of a vacancy in any Council. Depending on the view that I took of the major premise underlying the objection, it may not be necessary to deal with the minor premise. Nevertheless, I expressed the view at the hearing that it should be considered on its merits as a preliminary issue in any event. And in order to allow the applicants time to prepare further argument on that basis and to put further submissions on the desirability of considering the question as a preliminary issue, orders were made on 12 April in the following terms:
   

1. The objection to competency is adjourned to 3.30 pm on 24 April 1991.

2. Subject to the next order there be a hearing of the preliminary issue whether the applicants' claim that the elections were conducted in breach of s.109 of the Aboriginal and Torres Strait Islanders Commission Act raises a question in respect of the qualifications of a member of a Regional Council or a vacancy in a Regional Council capable of being referred to the Court by the Minister under s.17(1) of Schedule 4 of the Aboriginal and Torres Strait Islanders Commission Act.

3. The preceding order be subject to the applicants' right to further submit that the preliminary issue should not be heard and determined separately from the hearing and determination of the substantive application.

4. Subject to the preceding order the preliminary issue will be heard on 24 April 1991 at 3.30 pm.

5. The parties have leave to file further affidavit evidence in relation to the preliminary issue on or before 22 April 1991.

6. Costs today reserved.

The matter came on again for argument on 24 April and counsel for the applicants submitted that the questions raised by the preliminary issue ought not to be disposed of outside the context of a full hearing. He nevertheless argued the issue and I reserved judgment on the objection to competency, the question whether the preliminary issue ought to be determined and, subject to the resolution of that question, determination on the preliminary issue itself.

Statutory Framework

1. Part 3 of the ATSIC Act defines 60 regions within Australia for the purposes of the Act (s.91) and establishes a Regional Council for each (s.92). The functions of the Regional Councils are defined in s.94 and have already been referred to. Division 4 of Pt.3 comprising ss.100 to 114 inclusive, deals with Regional Council elections. The framework for their general conduct is provided by s.100:
   

"100. Regional Council elections shall be conducted by the Australian Electoral Commission in accordance with:

(a) the provisions of this Act; and

(b) the Regional Council Election Rules in force at the beginning of the election period."

The qualifications for electors are set out in s.102 in the following terms:

"102(1) A person is not qualified to stand for election, or to be elected, as a member of a Regional Council if:

(a) the person is not entitled to vote at the Regional Council election;

(b) the person does not live in the region for which the Regional Council is established;

(c) the person is a member of the staff of, or a consultant to, the Commission;

(d) subject to subsection (2), the person has been convicted of an offence against a Commonwealth, State or Territory law and sentenced to imprisonment for one year or longer; or

(e) subject to subsection (2), the person has been convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced to imprisonment for 3 months or longer.

(2) In spite of subsection (1), a person covered by paragraph (1)(d) or (e) is not disqualified by that paragraph from standing for election, or being elected, as a member of a Regional Council 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 standing for election, or being elected, as a member of a Regional Council.

(3) The Federal Court of Australia has jurisdiction with respect to matters arising under subsection (2). "

A secret ballot is required by s.109 of the Act:

"109. Voting at Regional Council elections shall be by secret ballot."

The requirement is reinforced by s.110(2) which provides that a ballot paper is formal if and only if:

"(a) The authorised electoral officer is satisfied that it is an authentic ballot paper;

(b) It indicates the voter's first preference for one, and only one, candidate; and

(c) It does not have upon it any identifying mark."

The term "identifying mark" is defined in sub-s.110(4):

"'Identifying Mark' means writing or another mark by which, in the opinion of the authorised electoral officer, the voter can be identified, but does not include writing or another mark placed on the ballot paper (whether or not in contravention of any law) by a person involved in conducting the election."

Section 113 empowers the Minister, after consulting the Aboriginal and Torres Strait Islander Commission and the Electoral Commissioner, to make rules, not inconsistent with the Act, prescribing inter alia, the manner in which Regional Council elections are to be conducted. Sub-section 113(2) provides, inter alia, that the matters that may be dealt with in the Rules include but are not limited to:

"(a) The use of an electoral roll or voter cards to establish an entitlement to vote or make a record of the persons who have cast votes;

.

.

.

(g) Confidentiality of voting."

Section 122 of the Act provides that the Commission may declare in writing that it is satisfied that a member of a Regional Council has, since becoming a member, been convicted of an offence and been sentenced to a term of imprisonment for one year or longer or, in the case of an offence involving dishonesty, has been sentenced to more than three months imprisonment. A declaration may also be made that a member has failed to comply with the pecuniary interest requirements of s.119. In any of those events the member ceases to be a member of the Regional Council.

1. Division 7 of Pt. 3 (ss.130 to 139) makes provision for Zone elections. Division 8 comprises only s.140:
   

"140. The provisions of Schedule 4 apply where there is a dispute in relation to a Regional Council election or a zone election."

Schedule 4 to the Act is entitled "Disputes About Electoral Matters" and comprises some 28 sections. Section 2 prescribes a petition procedure in the Federal Court as the means of challenging an election result:

"2(1) The validity of any election, or of the declaration of a poll for an election, may be disputed by petition addressed to the Court and not otherwise.

(2) The Court has jurisdiction to try election petitions.

(3) The jurisdiction of the Court to try election petitions may be exercised by a single judge of the Court."

The Electoral Commission, by leave, and the Minister, as of right, are entitled to enter appearances in any proceedings (ss.7 and 8). The Electoral Commission may itself file a petition disputing an election (s.5). All the provisions just mentioned are found in Part 2 of the Fourth Schedule entitled "Disputed Elections". Part 3 entitled "Qualifications and Vacancies" begins with s.17:

"17(1) Any question respecting:

(a) the qualifications of a member of a Regional Council; or

(b) a vacancy in a Regional Council; may be referred to the Court by the Minister.

(2) The Court has jurisdiction to hear and determine the question.

(3) The jurisdiction of the Court to hear and determine questions may be exercised by a single Judge of the Court."

And where a question is referred under Part 3, the Minister is required to give to the Court a statement of the question upon which the determination of the Court is desired and any documents relating to the question that are in the Minister's possession (s.18). Any person interested in the determination of the question referred may be allowed to be heard on the hearing of the reference (s.19). The powers of the Court on such a reference include a power to declare that any person was not qualified to be a member of a Regional Council or that there is a vacancy on the Regional Council (s.21).

Objection to Competency

1. As appears from s.5 of the Administrative Decisions (Judicial Review) Act 1977, a person aggrieved by "a decision to which this Act applies" may seek an order of review in respect of the decision on any one of a number of grounds including:
   

"(c) That the person who purported to make the decision did not have jurisdiction to make the decision.

(d) That the decision was not authorised by the enactment in pursuance of which it was purported to be made."

These grounds raise explicitly the question whether the decision under review was in excess of a statutory power. Yet the class of reviewable decisions, those "to which this Act applies", is defined in s.3 of the Act in terms of decisions "of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment."

1. Implicit in the respondent's submissions is the contention that a decision which is beyond the power conferred upon the decision-maker by the relevant enactment, is not made "under" that enactment and is therefore not amenable to review. The contention is plainly untenable. If it were correct, reliance upon grounds of review going to power would be denied. A decision is said to be made "under an enactment" if it is made "in pursuance of" or "under the authority of" the Act or Ordinance or instrument concerned; Evans v Friemann (1981) 35 ALR 428 at 436 (Fox ACJ); Australian National University v Burns (1982) 43 ALR 25 at 31 (Bowen C.J. and Lockhart J.). In Emanuele v Cahill (1987) 71 ALR 302, Neaves J. said the question was whether as a matter of substance the decision has a sufficiently close connection with the legislative provision to make it appropriate to speak of it as having been made "under" that provision in the sense in which that word was understood in Australian National University v Burns (supra). These tests are not exhaustive of the categories of reviewable decision. It is clear, by reference to the grounds of review in s.5, that a decision made in purported reliance upon a power conferred by statute is a decision, which is to be treated for the purposes of judicial review as a decision made under that statute.

2. The major premise of the respondent's objection to competency cannot be sustained. A decision made in excess of the power conferred by the statute under which it was purportedly made is reviewable. If the Minister did exceed his power in purporting to deal with the request for a reference and deciding to reject it under s.17, the decision would nevertheless be reviewable and liable to be quashed or set aside on that basis. For the purpose of disposing of the objection to competency it is therefore unnecessary to deal with the minor premise that the question whether there has been compliance with the secret ballot requirements of the ATSIC Act is not a question respecting the qualifications of a member of a Regional Council or a vacancy in a Regional Council. Nevertheless, it is apparent that if decided adversely to the applicants that proposition will dispose of the case. It is as I have foreshadowed therefore necessary to consider whether that matter should be decided as a preliminary issue.
   The Preliminary Issue Procedure

3. Order 29 of the Federal Court Rules empowers the Court to separately decide certain questions or issues in a proceeding:
   

"29(1) In this Order, "question" includes any question or issue in any proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

(2) The Court may make orders for-

(a) The decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and

(b) The statement of a case and the question for decision.

(3) Where any question is decided under this Order, the Court shall, subject to rule 4, make such order, grant such relief, or give such directions as the nature of the case requires.

(4) Where the decision of a question under this Order-

(a) substantially disposes of the proceeding or of the whole or any part of any claim for relief in the proceeding; or

(b) renders unnecessary any trial or further trial in the proceeding or on the whole or any part of any claim for relief in the proceeding,

the Court may, as the nature of the case requires -

(c) dismiss the proceeding or the whole or any part of any claim for relief in the proceeding; or

(d) pronounce any judgment; or

(e) make any other order."

The principles governing the exercise of the power under O.29 were referred to by Toohey J. in TVW Enterprises v Duffy (unrep 28/3/85; Toohey J.):

"O.29 r.2 provides a useful procedure in certain cases though its usefulness depends upon the obtaining of answers which are likely to make a substantive hearing unnecessary, at least if the questions are answered in a particular way. The decision ultimately is one for the court though naturally it will have regard to the attitude of the parties."

And in Carl Zeiss Stiftung v Herbert Smith and Co. (1969) 1 Ch 93, Lord Denning (Diplock and Sachs L.J.J. agreeing) said at 98:

"I know that it has been said on one or two occasions that a preliminary issue should be ordered only when, which ever way it is decided, it is conclusive of the whole matter. That was said by Lord Evershed MR in Windsor Refrigerator Co. Ltd v Branch Nominees Ltd

((1961) Ch 88; (1961) Ch 375 at 396); and Harman L.J. in Yeoman Credit Ltd v Latter ((1961) 1 WLR 828 at 835). I do not think that is correct. The true rule was stated by Romer L.J. in Everett v Ribbands

((1952) 1 KB 112): "Where you have a point of law which, if decided in one way, is going to be decisive of litigation, then advantage ought to be taken of the facilities afforded by the Rules of Court to have it disposed of at the close of pleadings, or very shortly after the close of pleadings". I have always understood such to be the practice. I quite agree that in many cases the facts and law are so mixed up that it is very undesirable to have a preliminary issue. I always like to know the facts before deciding the law."

The preliminary issue in this case does not depend upon any question which would require evidence to be adduced. It is simple a matter of the proper construction of the Act. In my opinion, and in accordance with the principles already outlined, it is appropriate that that issue be decided now.

Submissions on the Preliminary Issue

1. The applicants submit that the term "qualifications of a member" in s.17 of the ATSIC Act is broader in its application than the qualifications of a candidate with which s.102 deals. It is said that the qualifications of a member as distinct from those of a candidate include a requirement that the member be elected according to law. In the context of this case, that imports a requirement that voting at the election be by secret ballot. Counsel for the applicants referred to the Shorter Oxford English Dictionary which defines "qualification" in part as follows:
   

"the action of qualifying; the condition or fact of being qualified; that which qualifies .

.

.

4. a quality, accomplishment etc., which qualifies or fits a person for some office or function

5. a necessary condition which must be fulfilled before a certain right can be acquired, an office held or the like."

Counsel for the applicants contended that, as used in s.17, the word "qualifications" bore the last meaning quoted above. There was, he said, no ambiguity. It is a necessary condition of membership of a Regional Council that the member has been elected according to valid rules. This case raises a question about the validity of the rules in so far as they relate to voting procedures and therefore a question respecting the qualification of members elected under them. It was put as a corollary of that proposition, that the case also gives rise to a question as to whether or not there is a vacancy. The policy of the section, it was said, is to allow the Minister to refer questions which need not be limited to a particular Council or a particular election, but may have national significance. Petition proceedings on the other hand, are so limited.

1. Counsel for the respondent suggested that s.17 reflected an historical dichotomy rather than some coherent legislative policy. A Supplementary Explanatory Memorandum which accompanied the Bill in its final form through the Parliament, said of Schedule Four:
   

"The amendments to the Schedule would bring the provisions of the Schedule closer into line with the Commonwealth Electoral Act 1918. In particular, the Schedule would provide, after amendment, for the Court of Disputed Elections to deal with guidelines concerning qualifications of Regional Councillors and of vacancies in Regional Councils. The provisions in this regard reflect Part XX of the Commonwealth Electoral Act 1918, and would be inserted as a new Part 3 to the Schedule. The insertion of the new Part would necessitate the reordering of the other provisions of the Schedule."

The reference to Pt.XX of the Commonwealth Electoral Act which deals with election funding and financial disclosure, was erroneous and should have been a reference to Pt.XXII which is entitled "Court of Disputed Returns". Section 353 which appears in that Part, provides in sub-s.(1) that:

"353(1) The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise."

The High Court is designated as the Court of Disputed Returns for that purpose (s.354). The Electoral Commission is entitled to file a petition disputing an election (s.357) and by leave may enter an appearance in any proceedings in which the validity of any election or return is disputed. Division 2 of Pt.XXII is entitled "Qualifications and Vacancies". Section 376 provides:

"376. Any question respecting the qualifications of a Senator or a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question."

And under s.377 when any question is referred, the President of the Senate or the Speaker of the House of Representatives, as the case may be, is required to transmit a statement of the question upon which the determination of the Court is desired.

1. Counsel drew attention to the similarity between s.353 of the Commonwealth Electoral Act 1918 and s.120 of the Representation of the People Act 1983 (UK) and the observation in Erskine May's Parliamentary Practice 21st Edition at p 36 that "this in no way supercedes the jurisdiction of the House in determining questions affecting the seats of its own Members, not arising out of controverted elections". This power, it was submitted, is a residue of the plenary power that the Houses of Parliament in Great Britain once exercised to deal with disputed elections generally. Section 376 of the Commonwealth Electoral Act 1918 provides a mechanism by which the Houses of the Australian Parliament can, in a sense, delegate that residual power to an external tribunal. The Ministerial power of reference under s.17 of Schedule Four of the ATSIC Act is analogous and derives from the dichotomy observed in ss.353 and 376 of the Commonwealth Electoral Act 1918. And it was said to be similarly limited. The qualifications of a member, it was submitted, define the right to stand for election and to be elected as a member of a Regional Council. Questions about vacancies would involve inquiries into matters set out in ss.120 - 122 of the ATSIC Act. These provisions deal with the resignation of members (s.120), deemed resignation for want of regional residential qualification (s.121) and termination of membership by declaration of the Commission where a member has been convicted of certain classes of offence or failed to disclose a pecuniary interest in a matter before the Regional Council (s.122). Counsel accepted that if a question concerning qualifications were to arise there would be an overlap in the procedures by which it may be determined. But if there be no question concerning qualifications or vacancies, then the only process open is a challenge by way of petition. In this case, it was said, there is no such question and therefore no power of referral under s.17.
   Scope of Questions Respecting Qualifications or Vacancies

2. The words of s.17 of Schedule Four to the ATSIC Act have some albeit a tenuous historical connection with the traditional powers of the House of Commons exercised with respect to the qualifications of persons elected and returned as members of the House. Those powers remained even after the Parliamentary Elections Act 1868 had conferred on the judges of the superior courts of common law jurisdiction to determine disputes as to the election and return of members. And as Erskine May (supra) pointed out, even the Representation of the People Act 1883 did not supercede the power of the Houses of Parliament in Great Britain to determine questions affecting the seats of their own members not arising out of controverted elections - see generally, - Quick and Garran Annotated Constitution of the Australian Commonwealth pp 496-498; Holmes v Angwin (1906) 4 CLR 297 at 305 (Griffith C.J.) and 307-308 (Barton J.); R. v Hutchins (1959) SASR 189 at 202 (Piper J.) and Re Wood (1988) 167 CLR 145 at 157-158. This traditional jurisdiction was reflected in s.18 of the Australian Constitutions Act (No. 1) 1842 (5 and 6 Vic C 76) which provided that "any question which shall arise respecting any vacancy in the Legislative Council of the Colony of New South Wales on occasion of any of the matters aforesaid shall be heard and determined by the said Legislative Council on such questions being referred to them by the Governor of the said Colony and not otherwise." The "matters aforesaid" were the various causes of disqualification set out in s.16 to that Act and included non attendance at the Council, giving allegiance to any foreign prince or power, bankruptcy or insolvency, attainder of treason, conviction of felony or any infamous crime and loss of mental capacity. And by s.12 of the Australian Constitutions Act (No. 2) 1850 those provisions were applied to Legislative Councils established in the colonies of Victoria, Van Diemens Land, South Australia and Western Australia.

3. The distinction between questions respecting qualifications or vacancies on the one hand and disputed elections on the other was apparent in the provisions of the Constitutions of Canada and the United States prior to the coming into existence of the Commonwealth of Australia - see s.4 of the British North America Act and Article 1 sub-s.5(1) of the Constitution of the United States of America. It was a distinction clearly in the minds of those who participated in the Convention Debates when sections of the proposed Commonwealth Constitution dealing with elections, qualifications and vacancies in relation to the Houses of Parliament were debated. The 1897 Draft contained three clauses, two of which, cls.21 and 43, left questions respecting qualifications and vacancies to be determined by the Senate and the House of Representatives respectively. A third clause, cl.50, provided for disputed elections to be determined by a federal court or a court exercising federal jurisdiction. In debate on the proposal Edmund Barton made clear that it was only disputed elections which could be dealt with by the Courts. "...vacancies and qualifications are left in both Houses". Conv Deb Adel 1897 p 1150. Mr B. Wise at 681 observed that "there are two questions here which ought to be kept distinct. There is the qualification of the member or the question as to vacancies on the one side, and the question of a disputed return which is a matter of altogether a different character".

4. In the event the proposals did not go forward in that form and under the Constitution ultimately adopted, the Houses of Parliament were given the power to determine all questions of qualification, vacancies and disputed election until the Parliament provided otherwise. This was reflected in s.47 of the Commonwealth Constitution:
   

"47. Until the Parliament otherwise provides, any question respecting the qualification of a Senator or a Member of the House of Representatives, or respecting a vacancy in either House of Parliament, and any question of a disputed election to either House shall be determined by the House in which the question arises."

Parliament first otherwise provided in s.192 of the Commonwealth Electoral Act 1902:

"The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise."

The Act was silent on the determination of questions respecting the qualifications of members or of vacancies in either House. These matters remained within the power of the Houses of Parliament to determine for themselves under s.47. No provision allowing referral of those matters to a court was introduced until the enactment of the Commonwealth Electoral Act 1918. Section 183(1) providing for the validity of elections or returns to be disputed by petition in the Court of Disputed Returns was identical to s.353(1) as it now stands. Section 203 of the Act as passed, identical to s.376 as it is today, allowed the Houses of Parliament to refer questions respecting the qualifications of their members or a vacancy in either House to the Court of Disputed Returns to hear and determine.

1. There is no direct authority on the point in issue in this case. However in Re Walsh (1971) VR 33, the Full Court of the Supreme Court of Victoria held that a reference by the Legislative Council of Victoria to the Court of Disputed Returns in that State on whether a person is capable of being elected a member of the Legislative Council, is a question respecting the qualifications of a member within the meaning of s.300 of the Constitution Act Amendment Act 1958 (Vic). At 35 the Court (Smith, Pape and Menhennitt JJ) said:
   

"In our view, the Legislative Council was empowered by s.300 to refer to the Court of Disputed Returns the question that has been referred to by the abovementioned resolution, because the question was one respecting the qualification of a member. "Qualification", in the context, means the condition or fact of being qualified or a necessary condition which must be fulfilled before a certain right can be acquired (see Shorter Oxford English Dictionary), and the question whether a person is made incapable of being elected raises one aspect of the question of qualification namely, whether there is a disqualification."

1. It is not necessary to resort to history to discern that the provisions of s.17 of Schedule Four of the ATSIC Act have a practical application not able to be addressed by the petition process. If a person, qualified when elected, is alleged to have fallen into one of the classes of disqualification under s.102 of the Act, then if that allegation is disputed it may be referred under s.17 of the Schedule. It enables questions of qualification and vacancies arising independently of the electoral process to be determined by a Court. That is not to say that there will not be cases in which there will be an overlap between the petition and referral processes where a controverted election throws up a question of qualification. Nevertheless the historical origins of the dichotomy between the two processes is apparent in the language of ss.2 and 17 of the Schedule.

2. The difficulty with the applicants' submission is that it gives to the terms "questions respecting...the qualifications" and "questions respecting a vacancy" such broad application that any disputed election could be referred by the Minister under s.17 whatever the basis of the dispute, thus eliding the dichotomy which the statute itself sets up and which is reflected in its ancestry. It may be accepted that the word "qualification" is used in the dictionary sense of "necessary conditions to be fulfilled before a certain right can be acquired or an office held". In my opinion, however, it does not refer to election. It is, in ordinary usage, descriptive of conditions necessary but anterior to the valid operation of that process.

1. I am satisfied therefore that the question whether the elections were validly conducted according to the secrecy requirements of the Act is not a question respecting the qualifications of the elected members of the Regional Council. Nor is it a question respecting vacancies, that being historically an aspect of disqualification from, or termination of, membership. In my opinion, the preliminary point must be resolved against the applicants. A question whether the election was invalidly conducted for want of a secret ballot is not a question which can be referred to the Court under s.17 of Schedule Four. There can therefore, be no reviewable error arising out of the Minister's refusal to refer it. The application must be dismissed.