Colson v Mousley (No 2)
[2007] SADC 1
•15 January 2007
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of ANANGU PITJANTJATJARA YANKUNYTJATJARA LAND RIGHTS ACT 1981
COLSON v MOUSLEY & ORS (No 2)
[2007] SADC 1
Judgment of His Honour Judge Clayton
15 January 2007
ABORIGINALS - ABORIGINAL CORPORATIONS
ELECTIONS - NOMINATION OF CANDIDATES
Petition alleged that election of Executive Board of Anangu Pitjantjatjara Yankunytjatjara was invalid on the ground that nominations were not lodged with the “relevant electoral official” for the electorate as required by subclause 6(3) of Schedule 3 to the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981.
HELD: A facsimile sent to the relevant electoral official by a third party satisfies the requirement that nominees must lodge their nomination with the relevant electoral official. Petition dismissed.
Anangu Pitjantjatjara Yankunytjatjata Land Rights Act 1981 Schedule 3; Electoral Act 1985 s106, referred to.
Gerhardy v Brown (1985) 159 CLR 70; Featherstone v Tully (2002) 83 SASR 302; Ory v Betamore Pty Ltd (1993) 60 SASR 393 at 414; Project Blue Sky Inc v Australian Broadcasting Commission (1998) 194 CLR 355, considered.
COLSON v MOUSLEY & ORS (No 2)
[2007] SADC 1
By a petition filed on 23 December 2005 Mr Dennis Colson seeks a declaration that the nomination of Mr Kawaki (Punch) Thompson for election to the Executive Board of Anangu Pitjantjatjara Yankunytjatjara (“APY”) be declared invalid. In addition he seeks an order that a new election be held for the Anilalya/Turkey Bore the electorate.
The Executive Board of APY is established by section 9 of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981. APY is a body corporate established by the Act charged with the functions set out in section 6 of the Act which include ascertaining the wishes and opinions of the traditional owners of the APY lands, giving effect to those wishes and opinions, protecting the interests of traditional owners and administering the lands. The importance of the scheme created by the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1991 was acknowledged by the High Court of Australia in Gerhardy v Brown[1].
[1] (1985) 159 CLR 70
I accept the submission on behalf of the petitioner that the election of the Executive Board of APY is important and must be done correctly and strictly in compliance with the rules. I also accept the submission that the Electoral Commissioner has no discretion to accept a nomination in a manner inconsistent with the rules prescribed in Schedule 3 to the Act.
The Executive Board consists of ten members elected or appointed in accordance with the Act. The validity of an election may be disputed in accordance with Schedule 3 to the Act.
Schedule 3 sets out the rules of election under section 9. Relevant definitions in the schedule are “electoral official” which means “the returning officer or an electoral official appointed by the returning officer under clause 3(2)” and “relevant electoral official” which means “an electoral official appointed to be responsible for a particular electorate in accordance with clause 3(2)”.
Clause 3(1) provides that the Electoral Commissioner will be the returning officer for the purposes of an election under section 9. It is to be noted that the definition of “relevant electoral official”, unlike the definition of “electoral official”, does not include a reference to the returning officer.
Clause 3(2) requires the returning officer to appoint a relevant electoral official for each electorate and provides that the returning officer may appoint one or more other electoral officials to assist in the conduct of an election.
Clause 3(3) provides:
Without limiting the generality of subclause (2), an electoral official -
(a) may hand out nomination forms to members of the community; and
(b) may receive nomination forms up to the close of nominations; …
Eligibility and nominations for election are dealt with in clause 6, which provides in subclause (3) that “a person wishing to nominate must nominate in writing and lodge their nomination with the relevant electoral official”. The resolution of this petition turns upon the interpretation of that clause.
It is to be noted that subclause 3(3) permits an “electoral official” to receive nomination forms, but subclause 6(3) requires that nominees must lodge their nomination with “the relevant electoral official”.
Subclause 6(6) requires the “relevant electoral official” for the particular electorate to cause all nomination forms to be sent to the returning officer with a photograph of each candidate.
Clause 18 provides that there will be a Court of Disputed Returns constituted of a District Court Judge. Clause 20 gives the court jurisdiction to hear and determine any petition addressed to it disputing the validity of an election.
Clause 21 prescribes the requirements for a petition and clause 22 sets out the powers of the court. Subclause (2) states that the court may exercise all or any of its powers under clause 22 “on such grounds as the court in its discretion thinks just and sufficient”. The court is not bound by the rules of evidence (subclause 22(3)) and “must act according to good conscience and the substantial merits of the case without regard to legal technicalities” (subclause 22 (4)).
Mr Peter Trembath was appointed the relevant electoral official for the Iwantja electorate and the Amuruna / Railway Bore / Witjintitja / Wallatinna electorate and Ms Peta Butler was appointed the relevant electoral official for the Anilalya / Turkey Bore electorate. Those facts are not in dispute.
The petition alleges that on 7 November 2005 Mr Thompson lodged his nomination for the Anilalya / Turkey Bore electorate with Mr Trembath and that the nomination did not comply with subclause 6 (3) of Schedule 3 to the Act.
The case of the petitioner is that the nomination of Mr Thompson is invalid because it was not lodged with the relevant electoral official for the Anilalya / Turkey Bore electorate and did not satisfy the requirements of subclause 6(3). Counsel for the petitioner argued that Mr Thompson should not have been placed before the electorate as a candidate for election. He conceded that the nomination of the petitioner himself should not have been placed before the electorate either, because it was subject to the same deficiency. He argued that the activity undertaken by the Electoral Commissioner purporting to be an election was not an election at all.
If the matter rested there the petitioner might have a case. However, there are further facts which need to be taken into account. In her Reply the Electoral Commissioner admitted that Mr Thompson lodged his nomination with Mr Trembath and asserted:
·On 8 November 2005 she, as returning officer, received a copy of Mr Thompson's nomination form.
·On 8 November 2005, Mr Alderman, an officer of the Electoral Office sent the nomination form of Mr Thompson to Ms Butler, the relevant electoral official for the Anilalya / Turkey Bore electorate.
·The closing date for nominations was 9 November 2005 at 5.00pm.
·The petitioner did not lodge his nomination with Ms Butler either but lodged his nomination with the relevant electoral official for the Pukatja / Yunyarinyi electorate who arranged for it to be forwarded to Ms Butler.
The assertions in the Reply are established by an affidavit of the Electoral Commissioner sworn on 5 January 2006. In addition the parties have agreed the following fact:
Peta Butler (the relevant electoral official for the electorate of Anilalya/Turkey Bore) did receive by facsimile, before the close of nominations deadline (9 November 2005), a copy of the second respondent’s nomination form (being the document identified as KMM3 to the affidavit of Kay Mousley sworn 5 January 2006) via the State Electoral Office as per paragraph 9 and exhibit KMM4 to the affidavit of Kay Mousley sworn 5 January 2006.
Presumably it is because the nomination of the petitioner is subject to exactly the same deficiency as he complains of with respect to be nomination of Mr Thompson that the petitioner seeks an order that a new election be held rather than a declaration pursuant to clause 22(1)(f) that he was duly elected.
As I have mentioned subclause 6(6) of Schedule 3 requires the relevant electoral official to cause all nomination forms to be sent to the returning officer. In the case of both the petitioner and Mr Thompson the returning officer had received their nominations before the closing date. In those circumstances, while the irregularity of which the petitioner complains may appear to be more of a technicality that a matter of substance, the requirements of Schedule 3 had not been complied with by Mr Thompson lodging the form with Mr Trembath. However, the nomination of Mr Thompson was later forwarded to Ms Butler, the relevant electoral official, by Mr Alderman of the State Electoral Office on 8 November 2005. Accordingly, the relevant electoral official had received the nomination of Mr Thompson on 8 November 2005, although Mr Thompson had not lodged the form with the relevant electoral official for the Anilalya / Turkey Bore electorate personally.
As I have mentioned, subclause 3(3) permits electoral officials, not just the relevant electoral official, to receive nomination forms. The complaint of the petitioner comes down to the fact that Mr Thompson's nomination was not lodged with the relevant electoral official, Ms Butler, by Mr Thompson personally, but was sent by facsimile by an employee of the State Electoral Office.
As I have mentioned, the resolution of the petition turns upon the interpretation of subclause 6(3). In determining the matter the court is directed by subclause 22(4) to act according to good conscience and the substantial merits of the case without regard to legal technicalities.
Section 106 of the Electoral Act 1985, which is similar to subclause 22(4) of Schedule 3, was considered by the Full Court in Featherstone v Tully[2] where a Court of Disputed Returns had referred questions arising out of a petition under the Electoral Act 1985 to the Full Court. In discussing section 106, Williams J said that a court would not be acting in accordance with the substantial merits and in accordance with good conscience if it were to determine the issues otherwise than by the application of the relevant law to the facts established by the evidence. Bleby J observed (at paragraph 108) that the Electoral Act 1985 specified a number of requirements that must be complied with in the nomination and electoral process, but that if the contravention related only to the procedure of the election - the process of electing rather than the decision for whom to vote - then section 107(3) of the Electoral Act 1985 required proof that the result of the election was affected by the breach before making the declaration of invalidity. The rules in Schedule 3 of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1991 do not contain an equivalent of section 107(3) of the Electoral Act 1985.
[2] (2002) 83 SASR 302
At paragraph 152 Bleby J gave more detailed consideration to the requirements of section 106 of the Electoral Act 1985 and discussed similar provisions in other statutes. His Honour concluded that the mandate did not enable the court to ignore principles of law or express statutory requirements and that the words would take their meaning from their context. He referred to Ory v Betamore Pty Ltd[3] where Duggan J said that a similar provision could not have the effect of excluding altogether the application of all legal principles which would otherwise be applicable. Bleby J thought that to interpret the section to “refer only to procedure” was too narrow (paragraph 155). He thought that section 106 of the Electoral Act 1985 meant that the court must exercise its judgment according to its good conscience and according to what it considered to be the substantial merits of the case in deciding whether the respective common law or statutory criteria had been met; that the section permitted resort to a commonsense judgment in all the circumstances, but that the court's judgment could not be arbitrary and must still apply the common law principles.
[3] (1993) 60 SASR 393 at 414
Applying that approach, I have reached the opinion that subclause 22(4) of Schedule 3 can be used for the purpose of interpreting subclause 6(3) of Schedule 3 in order to determine whether the requirements of the rules governing the election have been satisfied, but subclause 22(4) does not allow the court to excuse a failure to comply with a requirement of the rules set out in Schedule 3.
As I have mentioned, subclause 6(3) requires a person wishing to nominate to “nominate in writing and lodge their nomination with the relevant electoral official”. Do those words mean that a nomination faxed to a relevant electoral official by a third party is invalid?
I do not interpret subclause 6(3) to require the nomination to be lodged with the relevant electoral official by the nominee personally. The clause does not specify that lodgement of the nomination must be by the nominee in person. In my opinion it would be contrary to subclause 22(4) to imply such a requirement. Also there is nothing in subclause 6(3) which excludes a nomination from being lodged by facsimile. The Electoral Commissioner said in evidence that in a State election the Electoral Office will accept nominations by facsimile and that nominations are lodged by political parties rather than the candidates so that the Electoral Office never gets to see the nominee.
The word “lodge” is defined in the Macquarie Dictionary 2nd Revised Edition as meaning “to bring or send into a particular place or position”. Sending a nomination to a relevant electoral official by facsimile would be in accordance with that definition.
In my opinion subclause 6(3) does permit a nomination to be lodged with the relevant electoral official by a third party by facsimile.
I reject the submission of counsel for the petitioner that the word “their” in subclause 6(3) means that the nominee should lodge the nomination personally. There is no reason why lodgement by a third party or an agent should be excluded.
It is unnecessary for me to deal with the submission on behalf of the Electoral Commissioner that subclause 6(3) is a procedural requirement so that non-compliance should not lead to invalidity. Similarly, it is unnecessary to deal with the submission that each of the returning officer and the relevant electoral official had received the nomination prior to the close of nominations and the fact that the forms were not lodged with the relevant electoral official had no effect on the electoral process. While that submission may have merit I have found that the nomination form had been lodged with the relevant electoral official and complies strictly with the requirements of subclause 6(3). For the same reason, it is unnecessary to consider whether the requirements of subclause 6(3) are mandatory or directory and whether the principles laid down in Project Blue Sky Inc v Australian Broadcasting Authority[4] have application.
[4] (1998) 194 CLR 355
Counsel for the petitioner argued that the community as a whole was prejudiced because candidates were put forward who should not have been put forward. He said that Mr Colson was prejudiced in that his expectation was that nominations would only be put to the community in accordance with the Act. There is no evidence that Mr Colson did have such an expectation. I do not accept that Mr Colson has suffered any prejudice. The question of prejudice is made irrelevant by my finding that the nomination of Mr Thompson did comply with subclause 6(3).
It was submitted on behalf of the petitioner that in exercising a discretion the court should consider how the election was conducted and take into account alleged errors and omissions including the fact that the relevant electoral official came from outside the Anilalya / Turkey Bore electorate and the fact that election materials were misleading. That submission appears to be a back door means of arguing grounds proposed to be raised by an amendment which I disallowed. However, having determined that the nomination of Mr Thompson did comply with subclause 6(3) there is no discretion for the court to exercise.
I find that the nomination of Mr Thompson had been lodged with the relevant electoral official prior to the closing date. Accordingly, the election of Mr Thompson was not invalid.
The petition is dismissed.
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