In the Matter of a Disputed Election under the Aboriginal and Torres Strait Islander Commission Act 1989; Yarran, W.J. v Blurton, M.

[1992] FCA 370

Re: WILLIAM JOSEPH YARRAN
And: MICHAEL BLURTON; FRED COLLARD; GWEN CORUNNA; LEN COLBUNG; DENNIS
EGGINGTON; TERRENCE GARLETT; ROBERT ISAACS; JOHN KALIN; LARRY KICKETT; JOHN
McQUIRE; JIM MORRISON; FRANK NANNUP; JOHN PELL; NEIL PHILLIPS; SPENCER RILEY;
ROB RILEY; JACK WALLEY; GLORIA WALLEY; TED WILKES; LAUREL WINDER and THE
AUSTRALIAN ELECTORAL COMMISSION
No. WA G6 of 1992
FED No. 370
Aborigines - Elections
(1992) 36 FCR 152
(1992) 112 ALR 603

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Aborigines - Aboriginal and Torres Strait Islander Commission - Regional Council - election - declaration that election void - consequences of declaration - whether persons elected can retain office pending new election - whether alternative procedures for new election constitute secret ballot - power of Court to direct procedures in fresh election.

Elections - Aboriginal and Torres Strait Islander Commission - Regional Council elections - election declared void - whether persons elected can retain office pending fresh election - proposed procedure for fresh election - whether constitutes secret ballot - power of Court to direct procedure for fresh election.

Aboriginal and Torres Strait Islander Commission Act 1989

Re Australian Public Service Association NSW Branch Ex parte Johnston (1989) 31 IR 257

Wattmaster Alco Pty Ltd v. Button (1986) 13 FCR 253

HEARING

PERTH

#DATE 3:6:1992

Counsel for the Petitioner: Dr. J. Cameron

Solicitors for the Petitioner: Aboriginal Legal Service

Counsel for the First Respondents
(other than Len Colbung): Mr P. Vincent

Solicitors for the First Respondents: Newton Vincent

Counsel for the Second Respondent: Mr P. Thompson

Solicitors for the Second Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

The fresh election to be conducted for the Perth Regional Council in accordance with the Minister's determination pursuant to Rule 130 of the Regional Council Election Rules made pursuant to the Aboriginal and Torres Strait Islander Commission Act 1989 be conducted on the basis that after compliance with Rule 92(4)(a) the officer shall:

(i) tear off the declaration from the envelope containing the ballot paper;

(ii) place the envelope containing the ballot paper in the ballot box;

(iii) retain the declarations in alphabetical order for any future reference;

(iv) total the number of declarations in the count and record the number on a result slip;

(v) place the declarations into a parcel preferably in a separate area.

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

JUDGE1

On 11 May 1992 following the hearing of a petition by William Yarran challenging the conduct of an election on 3 November 1990 for the Perth Regional Council established under the Aboriginal and Torres Strait Islander Commission Act 1989, the election was declared void. A declaration was also made that the Regional Council Election Rules in force at the time of the election did not provide for voting to be by secret ballot as required by s.109 of the Act. An order was made that the parties had liberty to apply within 14 days for further orders and on the question of the costs of the petition.

1. Pursuant to that liberty, the petitioner has sought orders in the following terms:
   

"1. It is declared that insofar as they provide for the use of a voter card envelope the Aboriginal and Torres Strait Islander Council Rules made on 9 July 1990 do not comply with the secrecy provisions of section 109 of the Aboriginal and Torres Strait Islander Commission Act and are to that extent ultra vires and void.

2. It be declared that all Regional Council and Zone elections held under and pursuant to such rules are accordingly void and of no effect.

3. It be declared that the First Respondents were not duly elected to the Perth Regional Council.

4. That the Second Respondent pay the costs of the Petitioner."

1. The first of these declarations is sought as a consequence of the declaration made on 11 May that the rules did not provide for voting to be by secret ballot as required by s.109 of the Aboriginal and Torres Strait Islander Commission Act. In my opinion, however, it is undesirable to go further than the declaration that was made. The central issue in the case was whether the conduct of the election complied with the requirements of the Act. The proposed declaration as to the invalidity of the Rules is really linked to the second order sought by the petitioner. But as I indicated in the course of argument, it is beyond my power on a petition challenging the election for the Perth Regional Council to declare void other Regional Council elections. Quite apart from the absence of any power to make such an order, it would have an obvious impact upon the rights and interests of persons who are not parties to these proceedings.

2. The third order proposed by the petitioner is related to and directly opposed to an order sought by each of the first respondents other than Len Colbung. The latter order would be in the following terms:
   

"...the First Respondents remain as Perth Regional Councillors under the Aboriginal and Torres Strait Islander Commission Act 1989 until the expiry of the next election period or until the last day on which a poll is declared in relation to a further election for the Perth Regional Council which may be determined by the Minister to be held pursuant to Rule 130 of the Regional Council Rules; whichever is the earlier."

This proposal is supported by an affidavit sworn by Neil Albert Phillips, an elected member of the Perth Regional Council, who is also a member of the Commission. Mr Phillips' term as a councillor would, if unchallenged, have expired at the end of the next round of Regional Council elections some time between June and December 1993. If the status quo is not preserved and the incumbents do not retain their seats until new elections are held the effects, it was said, would be oppressive to Mr Phillips and his fellow councillors. He pointed in particular to the following factors:

1. The reason that the election was declared void was not attributable to the fault of any of the successful candidates.

2. That the Court had found that only one voter, Mr Headland, was deterred from casting a vote by reason of the system used.

3. That the elections for Regional Councillors throughout Australia utilised the same Rules and practices and had not been vitiated.

4. That Aboriginal people in the Perth Region would be without the benefit of Council representation on Regional, State and National matters until a new election could be held.

5. Mr Phillips receives remuneration for his part-time work as a Commissioner and this is his only source of income. He would be financially disadvantaged if required to vacate his position on the Council and believes that other Regional Councillors would also be financially disadvantaged.

1. It was submitted for the first respondents that although the election had been declared void that order did not determine their offices as members of the Council. Reference was made to s.117 of the Aboriginal and Torres Strait Islander Commission Act which provides:
   

"Persons elected, or declared to have been elected, as members of a Regional Council:

(a) take office as members at the end of the election period concerned; and

(b) hold office, subject to this Part, until the end of the next election period."

The tenure of a person holding office as a member of a regional council was said to be conditional upon the fact of election or a declaration that that person had been elected. It was submitted that the declaration by the Court that the election is void did not alter the fact that the office holders had been declared elected by the Returning Officer. A further step would be required, it was said, to cause those officeholders to vacate their positions. This could be done under cl.10(1)(e) of Schedule 4 to the Act which authorises the Court "to declare that any person who was returned was not duly elected". Of course, if the first respondents' contention is right, no action is necessary to enable them to continue in office. It was put, however, that an order is desirable because there is some dispute about the position with those responsible for administering the Commission. There was no evidence on this point beyond the assertion by counsel for the first respondents.

1. The form of order sought by the first respondents is coercive rather than declaratory in character. As presently formulated it has the obvious difficulty that it might be taken to impose upon the first respondents an obligation to remain in office until the end of the next election period. No doubt the defect could easily be cured. In my opinion, however, no form of coercive order would be appropriate even if I were empowered to make it. The question remains whether, as a matter of law, the first respondents can hold office notwithstanding the order of the Court declaring the election void. The procedures by which and basis upon which a person is declared elected to a Regional Council are not set out in the Aboriginal and Torres Strait Islander Act. Section 113 which empowers the Minister to make rules for Regional Council elections authorises the making of rules dealing with "the declaration of the poll" (s.113(2)(k)). Rule 101 of the Election Rules includes provision for the declaration of the poll in the following terms:
   

"101. The Regional Returning Officer must, as soon as practicable after the result of the election has been ascertained:

(a) at the place of nomination publicly declare the result of the election and the names of the candidates elected; and

(b) make out a statement in writing setting out the result of the election and the names of the candidates elected and transmit the statement to the Electoral Commissioner."

The declaration, it can be seen, must be of "the result of the election". When the election is declared void in my opinion the factual foundation for the declaration of the poll is removed and the declaration itself is to be regarded, at least from the date of the Court's order, as a nullity.

1. Given the rather special nature of the facts of this case, there is little guidance to be found in the authorities as to the effect of the Court's declaration upon the members of the Council. In Re Australian Public Service Association NSW Branch Ex parte Johnston (1989) 31 IR 257, Wilcox J. considered the effect of declaring a union election void under s.223(3) of the Industrial Relations Act 1988. His Honour took the view that the effect of such a declaration is that the election is void ab initio. That was consistent with the internal structure of the Act and the general principle that a decision held to be invalid was to be treated as void from the date it was made. In this respect his Honour quoted from a joint judgment of Sheppard J. and himself in Wattmaster Alco Pty Ltd v. Button (1986) 13 FCR 253 at 258:
   

"A decision made in purported exercise of a statutory discretion, but which is affected by a relevant irregularity, will normally be treated as valid until successfully impugned by an appropriate plaintiff; but once the decision is held to be bad in law it will be treated as being invalid, at least insofar as substantive rights are concerned, as from the date upon which it was made."

The effect of that passage in the union election context was that a person declared to have been elected by the returning officer is taken to be validly elected until the court declares to the contrary. But once appropriate declarations are made the persons who were declared elected are no longer the holders of their respective offices. This reasoning suggests that a declaration that an election is void effectively creates an immediate vacancy in the seats of the persons elected and there is nothing in the structure of the Aboriginal and Torres Strait Islander Commission Act to gainsay that conclusion. In my opinion the consequence follows from the declaration and there is no basis for the order sought by the first respondents or any variant thereof. That sought by the petitioner is redundant in the light of this conclusion.

1. The second respondent has informed the Court that the Minister has determined under r.130 of the Rules that a further election should be held for the Perth Regional Council. I note that the rules were resubmitted to both Houses of Parliament on 15 November 1990 to comply with tabling procedures which are a condition of their validity. That advice given to the Court by Counsel for the second respondent not being in dispute, I am entitled to regard the Rules as valid except insofar as they provide for a system of voting that does not constitute a secret ballot. The second respondent seeks an order to regulate the conduct of the proposed fresh election. It proposes that the new election should be undertaken using procedures whereby the content of the voter card envelope no longer appear directly on the envelope containing the ballot paper. The voter information is to be recorded on a counterfoil attached to the ballot paper envelope.

2. The order sought by the second respondent is in the following terms:
   

"That the fresh election to be conducted for the Perth Regional Council in accordance with the Minister's determination pursuant to Rule 130 of the Regional Council Election Rules made pursuant to the Aboriginal and Torres Strait Islander Commission Act 1989 be conducted on the basis that after compliance with Rule 92(4)(A) the officer shall:

(i) Tear off the declaration from the envelope containing the ballot paper;

(ii) Place the envelope containing the ballot paper in the ballot box;

(iii) Retain the declarations into alphabetical order for any future reference;

(iv) Total the number of declarations in the count and record the number on a result slip;"

The effect of the procedure proposed is that each voter would complete a declaration containing his or her name and address and that declaration would be on a counterfoil attached to the envelope containing the ballot paper. Prior to counting, the declaration would be detached from that envelope which would be replaced unopened into the ballot box. The opening of the envelopes containing the ballot papers and the counting of them would proceed subsequently.

1. In some respects the procedure is analogous to that described in my reasons for judgment in which a ballot paper is sealed inside an unmarked envelope which is in turn placed in an envelope bearing the voter's declaration. I said in the reasons that I regarded that method as less than satisfactory because of the perceptions it might engender. But as I also observed it could, in combination with an appropriate system for the separation of voter identity and voting intention, amount to a secret ballot. In my opinion, which I arrive at not without some hesitation, the system proposed will answer the description of a secret ballot in law, although voters might perceive it otherwise when they hand in their envelopes. It will be a matter for the relevant electoral officers to make clear to voters that the counterfoils will be detached and the envelopes containing the ballot papers returned to the ballot box before it is opened and before counting commences. An endorsement on the envelope to that effect might be helpful.

2. The power to make the order sought by the second respondent is derived from cl.10(1)(j) of Schedule 4 to the Aboriginal and Torres Strait Islander Commission Act 1989 which authorises the Court:
   

"to make any order, or give any direction, that the Court thinks is necessary or convenient for the purpose of giving effect to any declaration or other decision of the Court in the proceedings;"

It has been submitted by counsel for the petitioner that the order I am asked to make is in the nature of an amendment to the Regional Election Rules. The Rules however do not presently provide for a secret ballot and I consider that for the purposes of the election and in the exercise of the powers conferred upon the Court by cl.10(1)(j) I am able to make the order sought. I propose therefore to make that order. I will hear argument on the question of the costs of the petition.