Dodd v Gandangara Local Aboriginal Land Council

[1999] NSWLEC 263

Land and Environment Court

of New South Wales

CITATION:

Dodd v Gandangara Local Aboriginal Land Council & Ors [1999] NSWLEC 263

PARTIES

APPLICANT
Dodd

RESPONDENTS
Gandangara Local Aboriginal Land Council & Ors

NUMBER:

40205 of 1999

CORAM:

Pearlman J

KEY ISSUES:

Aboriginal :- Aboriginal Land Council elections - eligibility of candidate - validity of notice to council elections

LEGISLATION CITED:

Aboriginal Land Rights Act 1983
Aboriginal Land Rights Regulation 1996

DATES OF HEARING:

12/02/1999

DATE OF JUDGMENT DELIVERY:

12/07/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr H Packer (Barrister)
SOLICITORS
Horowitz & Bilinsky

FIRST REPONDENT
Mr T F Robertson (Barrister)
SOLICITORS
Henrietta J Dean

SECOND RESPONDENT
N/A
SOLICITORS
The Law Firm of Solari's

THIRD RESPONDENT
Mr G P Craddock (Barrister)
SOLICITORS
Crown Solicitor's Office

JUDGMENT:

IN THE LAND AND 40205 of 1999

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 7 December 1999

BRUCE DODD

Applicant

v

GANDANGARA LOCAL ABORIGINAL LAND COUNCIL

First Respondent

CHAIRPERSON OF THE NEW SOUTH WALES LOCAL ABORIGINAL LAND COUNCIL

Second Respondent

ELECTORAL COMMISSIONER OF NEW SOUTH WALES

Third Respondent

JUDGMENT

Introduction

1. These proceedings involve the attempt by the applicant, Mr Bruce Dodd, to stand as a candidate for election as a councillor for the Western Metropolitan Regional Aboriginal Land Council area on the New South Wales Aboriginal Land Council.

2. By his amended class 4 application Mr Dodd seeks the following orders:

1. A declaration that the Applicant was on:


(a) 28 September 1999; and
(b) thereafter;

a member of Gandangara Local Aboriginal Land Council.


2. A declaration that the notice given by the Returning Officer on 22 October 1999 pursuant to clause 44(1) of the Aboriginal Land Rights Regulation 1996 (“the Call for Nominations”) is invalid.

3. An order that the Call for Nominations be set aside.

Further and in the alternative to 2 and 3 above:

4. A declaration that the Applicant was and is eligible to be a candidate for election as the councillor for the Western Metropolitan Regional Aboriginal Land Council area on the New South Wales Aboriginal Land Council.

5. In the alternative to 4 above:-

(a) A declaration that the Applicant was entitled on:-

(i) 28 September 1999; and
(ii) thereafter;

to be included on the amalgamated Roll for the Western Metropolitan Regional Aboriginal Land Council area certified by the Second Respondent; and
(b) An order that the Applicant be included on the amalgamated Roll for the Western Metropolitan Regional Aboriginal Land Council area certified by the Second Respondent for the election of the Councillor for that area.


6. A declaration that the form for nomination of candidacy, dated 10 November 1999, and submitted by the Applicant to the Third Respondent on 15 November 1999 (“the Nomination Form”) is valid.

7. An order that the Third Respondent accept the Nomination Form and include the Applicant as a candidate in the election for the councillor for the Western Metropolitan Regional Aboriginal Land Council area on the New South Wales Aboriginal Land Council.

3. The orders sought by Mr Dodd were resisted by the first respondent, the Gandangara Local Aboriginal Land Council (“GLALC”) and by the third respondent, the Electoral Commissioner for New South Wales. The second respondent, the chairperson of the New South Wales Aboriginal Land Council (“NSWALC”) filed a submitting appearance.

Background

4. An election for 13 councillors of NSWALC is to be held on 11 December 1999.

5. On 8 September 1999, the Electoral Commissioner, who by virtue of s 25(2) of the Aboriginal Land Rights Act 1983 (“the Act”) is the returning officer for the election, notified NSWALC of the following timetable for the conduct of the election:

(1) 7 September 1999: publication of notice of the election in newspapers;

(2) 28 September 1999: closing of the rolls;

(3) 5 October 1999: list of electors (being members by residence) to be certified and sent to NSWALC;

(4) 12 October 1999: list of electors (being members by association) to be certified and sent to NSWALC;

(5) 19 October 1999: certified copies of the rolls to be sent to the returning officer;

(6) 22 October 1999: publication of notice calling for nominations;

(7) 15 November 1999: close of nominations;

(8) 17 November 1999: publication of notice of contested elections; and

(9) 11 December 1999: polling day.

6. On 15 September 1999, a general meeting of GLALC was held. The agenda for that meeting contained no item concerning membership. However, according to the evidence of the secretary of GLALC, Ms C Cronan, membership was raised as an item of general business. Ms Cronan acknowledged that the item was omitted from the agenda because she forgot it, or because the agenda was sent out before the notice of the election had been received. Nevertheless, she said, it was imperative that it be considered by the meeting in order to meet the tight timetable set by the returning officer. According to her evidence, Ms Cronan informed the meeting that, as secretary, she was bound to remove names from the roll if GLALC decided that names be removed because the persons no longer lived in the area nor had sufficient association with the area, and that GLALC must be satisfied that those persons do not meet the criteria set out in the Aboriginal Land Rights Regulation 1996 (“the Regulation”).

7. The minutes of that meeting contain the following entry:

GLALC Membership Roll
Secretary to remove from those persons with no addresses.
MOTION 11: That the GLALC members certify the GLALC Membership Rolls as correct.
Moved: Sandra Williamson Seconded: Sandra German
MOTION CARRIED

8. According to Ms Cronan, 200 names were removed as a consequence of this resolution, and the name of Mr Dodd was one of the names removed.

9. On 29 September 1999, Ms Cronan sent to NSWALC the certified GLALC roll of members by residence. The name of Mr Dodd was not included on that roll.

10. On 8 October 1999, a special meeting of GLALC was held to consider, amongst other things, three applications for membership by association. Mr Dodd was not one of the persons who had applied. GLALC resolved to reject those applications. On 12 October 1999, Ms Cronan sent to NSWALC the certified GLALC roll of members by association.

11. Mr Dodd had formed an intention sometime in late 1998 that he would run as a candidate in the election for a councillor for the Western Metropolitan Regional Aboriginal Land Council (“WMRALC”) area on NSWALC. He saw the publication of the notice of the forthcoming election in September, and then in October and early November he had several conversations with persons at NSWALC to check that his name was on the GLALC roll, and he was informed on each occasion that his name was listed. Mr Dodd annexed to his affidavit a list of members of the GLALC, which was a computer list he saw when he was in the NSWALC office having one of these conversations, and that list included his name.

12. Mr Dodd also stated that he had a similar conversation with a woman at the GLALC office in early October, and was similarly informed, after she had checked, that his name was on the roll. This conversation is disputed. The treasurer of the GLALC, Ms M Allen, gave affidavit evidence that she was the person with whom Mr Dodd had spoken and the fact that she had a conversation with Mr Dodd was corroborated by the tender of a brief note of it which she said she had put on the secretary’s desk. Ms Allen said that the conversation was to the following effect:

BD This is Bruce Dodd here. I want to find out if I am on the Gandangara roll? I haven’t received any mail for about 5 years. Maybe my neighbours have received my mail?

MA No, you are not on the Roll your name was removed as the mail we sent you was returned and we had no other address.

BD I have lived at Hawkesbury Road, Westmead for 5 years. My previous address was at Good Street, Westmead.

MA Unless we get notice of a change of address we do not know where to send mail.

13. On 15 November 1999, Mr Dodd completed a nomination form and delivered it to the office of the Electoral Commissioner. The following day, however, he had a telephone conversation with Ms K Wilkinson, the manager of corporate services at NSWALC, who informed him that his nomination had not been accepted because he was not a member.

14. That information was corroborated in a letter which Ms Cronan wrote to NSWALC on 16 November 1999, which, omitting formal parts, was as follows:

I as the Secretary of Gandangara Local Aboriginal Land Council I had to remove Bruce Dodd from the membership roll as he did not fit the criteria of the Land Council as we had no fixed address for him.

As our policy goes if you change address we need to be contacted by our change of address forms, in this case Mr Dodd did not inform us of his move. The last address that we have for him is Good Street, Westmead and for the last few years his mail has been returned to our office.

Until Bruce replies for membership he is no longer a member of Gandangara Local Aboriginal Land Council.

15. Mr Dodd conceded that he had not resided in the GLALC area for more than five years. In 1992, he was residing at Liverpool (which is in the GLALC area), and that year he became a member of GLALC, being listed on the roll, he said in giving oral evidence, because of his residence in the area. In 1993, he moved out of the GLALC area and has not returned. He resided first at Good Street, Westmead. He said that he had notified GLALC of this change of address. In 1995, he moved to Hawkesbury Road, Westmead, and he also said he notified GLALC of this change of address. He also said that he had voted as a member of GLALC in the 1996 election for members of NSWALC, his address on the roll for that election being Hawkesbury Road, Westmead.

16. On 18 November 1999, Ms Cronan was telephoned by Mr S Wright, the registrar under the Act. According to Ms Cronan’s recollection of the conversation, they discussed the omission of three names from the GLALC roll, including that of Mr Dodd, and Mr Wright advised her to put their names back on the roll so that court proceedings could be avoided. The next day, 19 November 1999, Ms Cronan wrote to NSWALC requesting that the GLALC roll be amended by the inclusion of three names, including that of Mr Dodd, although she said in her evidence in these proceedings that she did not have the authority of GLALC to do so. On the same day, the Electoral Commissioner advised NSWALC that, despite the request from Ms Cronan for amendment of the GLALC roll, he had decided not to accept Mr Dodd’s nomination form “on the basis that at the time of the close of nominations Mr Dodd was not entitled to be included on the Regional roll”.

17. Finally, it is relevant to note that the 13 amalgamated regional rolls were forwarded by NSWALC to the Electoral Commissioner in two batches; eight rolls were sent on 9 November 1999, including the roll for WMRALC, and the remaining five rolls were sent on 15 November 1999.

The statutory regime

18. There are two sets of provisions which are relevant to the issues in this case. The first comprises the provisions relating to membership of Local Aboriginal Land Councils (both in relation to becoming a member and in relation to removal of the names of members), and the second comprises the provisions relating to the holding of elections for NSWALC.

19. As to membership, s 6(3) of the Act provides as follows:

6(3) All adult Aborigines who are listed in the Local Aboriginal Land Council roll for a Local Aboriginal Land Council area shall be members of the Local Aboriginal Land Council for that area.

20. Adult Aborigines may become listed on the roll of a Local Aboriginal Land Council in one of two ways, by residence or by association. That is provided for in s 7(2) of the Act, which is as follows:

7(2) The Secretary of a Local Aboriginal Land Council shall list on the roll for the Local Aboriginal Land Council area the names and addresses of those adult Aborigines who:


(a) reside within that area and who have requested in writing that they be enrolled as members of the Local Aboriginal Land Council, or

(b) have an association with that area and who, upon application made in writing, have been accepted by a meeting of that Council as members.

21. Removal of the name of a person from the roll is dealt with in cl 19 of the Regulation. Clause 19(1) relevantly provides as follows:

19(1) The Secretary of a Local Aboriginal Land Council must remove from the roll of the Council the name of a person who:

(a) the Council is satisfied has died or no longer meets any of the criteria of membership of the Council …

22. Clause 19(2) of the Regulation provides that, if the secretary removes a person’s name from the roll, the person may lodge a written objection with the Registrar. Clause 19(3) provides for the Registrar to refer the objection either to the relevant Regional Aboriginal Land Council, or to the Court, depending upon the circumstances. The Regional Aboriginal Land Council may, under cl 19(4), make an inquiry, and if it is of the opinion that the objection may be resolved by conciliation, it is obliged to endeavour to resolve the dispute. There is provision in cl 19(5) and cl 19(6) for referral to the Court, and in cl 19(7) for the right of the objector and the secretary of the Local Aboriginal Land Council to be heard on the hearing of an objection.

23. Clause 19(10) provides as follows:

19(10) A person’s name may not be placed on the roll of a Council during the period commencing on the date of certification of the roll for the purposes of an election and ending on the date of the election.

24. Finally in relation to membership, it is relevant to note that s 13(6) of the Act provides model rules for Local Aboriginal Land Councils (until they make their first rules), and cl 8(2) of the model rules provides as follows:

8(2) The Secretary must remove from the Council Roll the name of a person if, and only if:

(a) the person dies, or
(b) the person resigns in writing, or
(c) the person no longer lives in the Council area and the Council at a meeting decides that the person does not have sufficient association with the area to continue as a member, or
(d) the person is suspended by the Council from attending Council meetings.
.

25. I turn now to the provisions in relation to elections. Section 25 of the Act provides that the regulations may make provision for the conduct of elections, but the Act itself makes provision, not only in relation to those who may vote, but also in relation to those who may stand for election. This latter requirement is found in s 27 which is as follows:

27 A person is not qualified to stand for election, or to be elected, as a councillor representing a Regional Aboriginal Land Council area unless the person is a member of a Local Aboriginal Land Council within the area.

26. Under cl 41 of the Regulation, the Minister in consultation with NSWALC, is to determine when an election is to be held, and the returning officer is to give notice of an election after the Minister has so determined. The notice is to state, amongst other things, that a person (if eligible) may be listed on the roll before the election if the person requests or applies to the secretary before the closing date of the roll (cl 41(4)(d)) and provision is made for the fixing of a closing date for the roll (cl 41(5)). Once notice is given, each Local Aboriginal Land Council must hold a meeting to consider any applications for membership by association (cl 42) and thereafter, the secretary must compile the roll, certify a copy, and send the certified copy to NSWALC (cl 43(1)). The secretary of NSWALC must then amalgamate all the Local Aboriginal Land Council rolls for each Regional Aboriginal Land Council area, and the amalgamated regional roll must be certified by the chairperson of NSWALC and sent to the returning officer (cl 43(2) and cl 43(3)).

27. Calling for nominations is regulated by cl 44 which relevantly provides that the returning officer “after receiving the certified rolls” is to give notice inviting nominations. Clause 45 relevantly provides as follows:

45(1) The returning officer may:

(a) fix a later day for the close of nominations, or
(b) fix a later day for the taking of the poll,

than that fixed for an election by a previous notice.

(2) The returning officer may fix a later day under this clause only if the returning officer is of the opinion that the election would otherwise fail.

28. Clause 47(1) is in the following terms:

47(1) To be eligible for nomination as a candidate for election as councillor, a person must be listed on the regional roll certified by the Chairperson of the New South Wales Aboriginal Land Council in relation to the Regional Aboriginal Land Council area for which the candidate has been nominated.

29. Clause 48(1) provides that the returning officer is to reject the nomination of a person as a candidate at an election if the person is not qualified to stand for election under s 27 of the Act.

The competing cases

30. Against that factual and statutory background, the competing cases of the parties may be noted.

Mr Dodd’s case

31. Mr Packer, appearing for Mr Dodd, asserted that the removal of Mr Dodd’s name from the GLALC roll was not in accordance with the Act and the Regulations. The only power of GLALC to remove his name was for it to be satisfied, in accordance with cl 19(1)(a) of the Regulation, that he no longer met the criteria for membership. Those criteria are only two. They are residence or association, as s 7(2) of the Act provides. But his name was removed by the secretary from the GLALC roll because GLALC decided that he did not have an address in the area. That is not a criterion for removal. Clause 8 of the model rules, in Mr Packer’s submission, supports this position, and GLALC did not examine, as cl 8 requires, Mr Dodd’s association with the area.

32. Accordingly, in Mr Packer’s submission, the removal of Mr Dodd’s name from the GLALC roll was an error which has deprived him of a fundamental and substantive membership right, that is, the right to stand for election to represent WMRALC on NSWALC. It is that right which these proceedings were instituted to vindicate, in Mr Packer’s submission, and Mr Dodd does not seek the restoration of his name on the GLALC roll or on the amalgamated roll, but, rather, the confirmation of his right to stand as a candidate in the election by virtue of the fact that he was originally a member of GLALC and was entitled to remain a member.

33. In Mr Packer’s submission, there was a further non-compliance with the Regulation. This concerned the notice calling for nominations. Clause 44 of the Regulation provides that such a notice must be given after the returning officer has received the certified rolls. But that requirement was not observed, because the notice was given on 22 October 1999, whereas the rolls were received respectively on 9 November and 15 November 1999.

34. Accordingly, in Mr Packer’s submission, the Court could make a declaration that Mr Dodd was at all relevant times a member of GLALC and that the notice calling for nominations is invalid. That would achieve the outcome which Mr Dodd desires, that is, an acknowledgment of his membership of GLALC and the opportunity to lodge a valid nomination form. That outcome could be achieved, in Mr Packer’s submission, by the returning officer taking action under cl 45 of the Regulation to fix a different date for the poll. In the alternative, the Court could order that the nomination form he has already lodged is valid and could order the Electoral Commissioner to accept it.

The respondents’ case

35. Mr Robertson, appearing for GLALC, made the following submissions:

(1) Mr Dodd was not qualified to stand for election because he was not listed on the roll of GLALC. The qualification for standing for election is membership of a Local Aboriginal Land Council, as s 27 of the Act provides, but membership depends upon being listed on the roll, as s 6(3) provides. Mr Dodd was not on the roll at the relevant time, and accordingly he is ineligible to be a candidate, and the orders he seeks should be refused.

(2) Membership of a Local Aboriginal Land Council does not depend upon some entitlement or right, it depends, as s 6(3) of the Act shows, on being listed on the roll. There is an entitlement to be so listed, if the person satisfies the criteria set out in s 7(2). The listing which follows from the satisfaction of those criteria is an administrative act, not a substantive right. Accordingly, the first declaration which Mr Dodd seeks, namely, that he was on 28 September 1999 and thereafter a member of GLALC, amounts, not to a declaration of an entitlement, but a declaration that his name be listed on the roll. That is an administrative act, and not one that the Court can order.

(3) There is another impediment to any order which has the result of listing Mr Dodd’s name on the GLALC roll. That is cl 19(10) which prohibits a person’s name being place on a roll during the election period. That period has now commenced. The amalgamated roll for the WMRALC was certified by 9 November 1999, and the poll is to take place on 11 December 1999.

(4) The removal of Mr Dodd’s name was not an error. It was removed by the secretary of GLALC as she was bound by cl 19(1) to do, if GLALC was satisfied that he no longer met the criteria of membership. There is no attack on the validity of the meeting of GLALC on 15 September 1999, and it must be presumed that its meeting was regular. The resolution of GLALC followed an explanation by Ms Cronan to the members at that meeting of their obligations under the Act and the Regulation as to the removal of names from the roll. Furthermore the resolution of GLALC was made in circumstances where, as Mr Dodd said in his oral evidence, members of GLALC knew him, and it must be presumed that the members made an informed decision. The fact that Ms Cronan later wrote to NSWALC seeking an amendment of the roll by the restoration of Mr Dodd’s name amongst others is not an admission of an error, because her evidence is that she wrote that letter on the advice of the registrar, Mr Wright, and without the authority of GLALC.

(5) In any event, the Court has at present no jurisdiction to adjudicate on issues concerning the validity of the notice calling for nominations, or the acceptance of Mr Dodd’s nomination, because the process of the election has been put in train. Once the election process has commenced, the Court’s jurisdiction is only enlivened by s 27AC of the Act, which is as follows:

27AC(1) The validity of an election for a councillor to represent a Regional Aboriginal Land Council area, or of any return or statement showing the voting in any such election, may be disputed by an application to the Court, and not otherwise.

(2) Any person may make an application to the Court under this section within 28 days after the returning officer has publicly declared the result of the election that is the subject of the application.

Mcdonald v Keats & Ors [1981] 2 NSWLR 268 is authority for the proposition that each and every step in the election process is exclusively within the province of a Court of Disputed Returns, which is the role of this Court when it is sitting to hear an application under s 27AC. No such application is presently before the Court, nor could it be, because the election has not yet been held.

36. Mr Craddock, who appeared for the Electoral Commissioner, supported Mr Robertson’s submission, but emphasised the public interest in the certainty of elections and the election process.

Mr Dodd’s eligibility to stand

37. The critical issue in this case is Mr Dodd’s eligibility to stand for election because, subject to one qualification, all the orders which he seeks depend upon the determination of that issue. The one qualification relates to the power of the Court to make the orders which he seeks. That qualification goes to whether or not the Court may declare that he was a member of GLALC at the relevant times, and whether or not the Court may make the other orders sought at a time when the election process is in train.

38. Eligibility to stand for election depends, as s 27 provides, upon membership of a Local Aboriginal Land Council within the relevant area, whilst cl 47(1) of the Regulation provides that eligibility for nomination depends upon being listed on the amalgamated regional roll. As I pointed out in Lester and Anor v Ellis and Ors (19 November 1996, unreported) at p 4, these provisions mean that eligibility of a person to be nominated as a candidate for election depends upon the name of that person being listed on the amalgamated regional roll but subject to the qualification set out in s 27 that the person cannot stand for election, or be elected, unless that person is a member of a Local Aboriginal Land Council within the area.

39. Mr Dodd, on the face of it, fails on both counts. At the time the rolls closed, on 28 September 1999, he was not a member of GLALC because he was not listed on the GLALC roll and as a consequence he was not subsequently listed on the amalgamated regional roll.

40. It seems to me that there is a good reason to conclude that the fact that Mr Dodd was not listed on the GLALC roll at the time the rolls closed is fatal to his application (and fatal to his desire to stand for election). There is a public interest in the certainty of the conduct of the election and its results, and that can to some extent be achieved by providing a basis for finality of the rolls. The statutory provisions in this regard are intended by the legislature, in my opinion, to ensure such finality. Thus, the notice announcing the election must prescribe a closing date for the rolls (as cl 41(4)(d) and cl 41(5) of the Regulation provide). A person who wishes to be listed on the roll may before that closing date apply to be listed upon one or other of the two criteria set out in s 7(2) of the Act. If that person makes a written application on the basis of residence, his or her name must be listed on the roll by the secretary. If that person makes a written application on the basis of association, then the meeting of the Local Aboriginal Land Council which must consider such an application must be held within seven day after the closing date, as cl 42(2) of the Regulation specifies. Thereafter, the secretary must certify the copy of the roll and forward it to NSWALC, where the process of amalgamation, certification and forwarding to the returning officer takes place.

41. Certification of the Local Aboriginal Land Council roll is the critical final step. This is confirmed by cl 19(10), which prohibits the placing of a name on that roll after the date of certification.

42. The procedure I have outlined makes it essential for a person who wishes either to vote in the election or to stand for election to ensure that his or her name is listed on the relevant roll or to make application for listing under s 7(2). In this case, there was a period of three weeks, between 7 September and 28 September 1999, for that to be done. Mr Dodd took no step in this connection, no doubt proceeding in the belief that his name was listed on the GLALC roll and would remain so. He conceded in cross-examination that he knew sometime in September that the names of persons were being removed from the GLALC roll, but he took no steps to check the position in relation to himself until early October, although, by then, it was too late under the statutory procedure.

43. I conclude, therefore, that Mr Dodd’s application must fail, because his name was not listed on the GLALC roll as at 28 September 1999. It follows by virtue of s 27 of the Act that he was not a member of GLALC at that date, and it follows also that his name was not listed on the amalgamated regional roll, so that he was ineligible to nominate as a candidate for the election.

44. Having regard to that conclusion, the fact that Mr Dodd saw a computer printout of the GLALC roll with his name included, or the fact that he was told by officers at NSWALC in October and November that his name was on the GLALC roll, or that he had voted as a member of GLALC in the 1996 elections, is irrelevant. His name was not listed on the GLALC roll which had been certified by the secretary.

45. Moreover, the conclusion I have reached must, in my opinion, pertain, whether or not Mr Dodd’s name was removed from the GLALC roll in error. To be eligible to stand for election, Mr Dodd was required to be a member of GLALC, and to be a member, Mr Dodd’s name was required to be listed on the roll. His name was not listed, whatever the reason for its omission, and Mr Dodd was simply not eligible to stand.

46. The circumstances of this case must be distinguished from those in Lester v Ellis. In that case, the election was declared to be void because one of the applicants in the proceedings had been denied the right to stand for election. The name of that applicant was listed on the roll of the relevant Local Aboriginal Land Council, and she was accordingly a member of that Local Aboriginal Land Council and entitled to stand for election. But her name had been omitted from the amalgamated regional roll, and she was as a result unable to nominate as a candidate in the election. In this case, however, Mr Dodd was not a member of GLALC at the date of the closing of the rolls.

47. However, in case I am wrong in holding that an error in removal of Mr Dodd’s name from GLALC makes no difference to his eligibility to stand for election, I turn next to deal with the circumstances concerning the removal of Mr Dodd’s name from the GLALC roll. In doing so, it is important to emphasise that Mr Dodd does not seek a declaration that the resolution of GLALC at its meeting on 15 September 1999 was void, nor does he seek an order that his name be reinstated on the GLALC roll. Rather, as I have pointed out, he claims that there was an error in the removal of his name, and that the error interfered with a fundamental and substantive right of his membership.

48. The facts are these:

(1) Mr Dodd had not resided in the GLALC area for more than five years;

(2) Mail sent to his former address within the GLALC area had been returned;

(3) Although Mr Dodd said that he had notified GLALC of his subsequent changes of residence, both Ms Allen’s conversation with him in early October and Ms Cronan’s letter of 16 November 1999 to NSWALC indicate that no such notification had been received.

49. The minutes recording the resolution of the meeting of GLALC on 15 September 1999 are ambiguous. On the face of it, they indicate that names were removed because the persons had no current address in the area. That is not a criterion for removal of a name from the roll. The basis for removal is, as cl 19(1) of the Regulation states, that GLALC is satisfied that the person no longer meets any of the criteria of membership. However, Ms Cronan’s unchallenged evidence is that, before GLALC resolved as it did, she had explained to the members at the meeting the requirements for removal of names from the roll. In my opinion, the minutes must therefore be read in the light of those requirements, and the proper interpretation of the minutes is that they refer to a failure of the persons whose names were removed to meet residence in the area as a criterion for membership.

50. Mr Packer submitted that, even if the minutes could be read in this way, the resolution still failed to comply with the Act and the Regulation. In his submission, the reference to “any of the criteria of membership” in cl 19(1) means that regard must be had by GLALC in forming its satisfaction to both criteria for membership, that is, both residence and association. That is borne out, he submitted, by reference to cl 8 of the model rules, which provides that removal occurs only if the person no longer lives in the area “and the Council at a meeting decides that the person does not have sufficient association with the area to continue as a member”.

51. I agree that cl 8 of the model rules reflects the fact that there are two criteria for listing on the roll, and it must be read as stating that the person’s name is to be removed because he or she neither resides in the area, nor has an association with the area. That is no more than is provided in cl 19(1), which refers to meeting “any of the criteria for membership”. But the meeting was dealing with persons who had become listed by reason of residence in the area. It did not have before it any application for listing by reason of association with the area, at least in the case of Mr Dodd, and there was nothing to consider in that regard. Its resolution takes colour from that fact, and must be read in the light of it. I reject therefore the submission that the resolution of GLALC failed to comply with the Act or the Regulation.

52. I am not prepared to find that the removal of Mr Dodd’s name from the GLALC roll was an error, and that as a consequence he should be regarded as having remained as a member of GLALC.

53. As I have earlier pointed out, Mr Robertson raised a question as to whether or not this Court was empowered to make the first declaration sought by Mr Dodd. The conclusion I have come to in regard to the removal of his name from the GLALC roll makes it unnecessary for me to determine this question, and I refrain from doing so.

The validity of notice calling for nominations

54. The other issue in this case is whether or not the notice calling for nominations is valid, it having been given by the returning officer before the certified rolls had been received.

55. In my opinion the Court is not empowered to consider and decide that issue in circumstances where the election process has commenced and has not yet terminated by the declaration of the poll. Mr Packer only faintly argued against such a conclusion, relying upon Burnum Burnum v Gandangara Local Aboriginal Land Council and Ors (1997) 93 LGERA 148 where it was held that the Court had jurisdiction despite the commencement of the election process. But that case must be distinguished from the present case. In that case, the challenge was to the validity of a meeting of the Local Aboriginal Land Council held under cl 42 of the Regulation at which applications for listing on the roll by reason of membership were considered. It was held (at p 154) that the meeting was not a step in the election process, but a method of ensuring that each roll of the respective Local Aboriginal Land Councils was complete.

56. In my opinion, the notice calling for nominations is just one more step in the election process. It follows the determination by the Minister that an election be held (cl 41(1)) of the Regulation) and the notice of the election given by the returning officer (cl 41(2)). Accordingly, the Court can only entertain a question arising in relation to any step of the election process under s 27AC when it is sitting in effect as a Court of Disputed Returns upon an application made following the declaration of the result of an election.

57. I do not take the same view in relation to the issue of Mr Dodd’s eligibility to stand for election, because, consistent with my reasoning in Burnum Burnum v Gandangarra Local Aboriginal Land Council , that is not a question arising in reference to any step in the election process, but rather it a question of membership of the roll.

Conclusion

58. In accordance with the foregoing, Mr Dodd’s application must fail. I therefore make the following formal orders:

(1) The application is dismissed.

(2) I reserve the question of costs.

(3) The exhibits may be returned.