Laurie v New South Wales Aboriginal Land Council; New South Wales Aboriginal Land Council v Laurie - [2009] NSWLEC 58

Reported Decision: 166 LGERA 157

Land and Environment Court

of New South Wales

CITATION: Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors [2009] NSWLEC 58
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: APPLICANT/FIRST CROSS-DEFENDANT
Patricia Helen Laurie
FIRST RESPONDENT/CROSS-CLAIMANT
New South Wales Aboriginal Land Council
SECOND RESPONDENT
Registrar, Aboriginal Land Rights Act 1983
SECOND CROSS-DEFENDANT
Brian Decelis
THIRD CROSS-DEFENDANT
Electoral Commissioner for New South Wales

FILE NUMBER(S): 40616 of 2008

CORAM: Pain J

KEY ISSUES:
INJUNCTIONS AND DECLARATIONS :- Applicant elected as councillor of NSWALC - declaration sought to allow Applicant to continue in role - cross-claim seeking declaration that nomination and election of councillor void
Jurisdiction :- jurisdiction of Court to hear cross-claim as to whether Applicant validly elected - whether validity of election can only be raised when court sitting as a court of disputed returns - distinction between election process and qualification of candidate to hold office/vacancy of office - whether declarations sought by cross-claim ancillary to Applicant's claim for relief
Construction and Interpretation:- was Applicant's election under Div 3 void because disqualified from holding office under Div 4 of Aboriginal Land Rights Act 1983- was Applicant's nomination for election validly accepted by the returning officer - should incorrect statutory declaration of the Applicant have been rejected - was Applicant immediately disqualified after her election
Judicial Review :- whether decision of Registrar not to ignore disqualifying conviction invalid - whether failure to give real and genuine consideration to relevant matters - whether irrelevant matters taken into account - whether decision manifestly unreasonable - whether Applicant denied procedural fairness by Registrar failing to disclose complaint and adverse material obtained - whether apprehension of bias because of way Registrar considered matters

LEGISLATION CITED: Aboriginal Land Rights Act 1983 s 3, 63, 66, 106, 120, 121, 123, 124, 125, 128, 132, 133, 135, 136, 137, 164, 165, 226, 235
Aboriginal Land Rights Amendment Act 2001
Aboriginal Land Rights Amendment Act 2006
Aboriginal Land Rights Regulation 1996 (repealed)
Aboriginal Land Rights Regulation 2002 cl 47, 48, 80, 83
Broadcasting and Television Act 1942 (Cth)
Commonwealth Electoral Act 1902 (Cth) s 192 (repealed)
Commonwealth Electoral Act 1918 (Cth) s 162, 163, 360, 376
Commonwealth of Australia Constitution Act (1900) s 47
Constitution Amendment Act 1958 (Vic) s 73, 300
Crimes (Sentencing Procedure) Act 1999 s 17
Funeral Funds Act 1979 s 11
Interpretation Act 1987 s 33, 34, 35
Land and Environment Court Act 1979 s 16, 20
Local Government Act 1993 s 274, 275, 276, 329
Local Government (Consequential Provisions) Act 1993
Migration Act 1958 (Cth)
Parliamentary Electorates and Elections Act 1912 s 161, 175B
Road Transport (Driver Licensing) Act 1998 s 25A(1)(a)
Water Management Act 2000

CASES CITED: Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494
Allen Allen & Hemsley v Australian Securities Commission (1992) 27 ALD 296
Arnold v Minister Administering the Water Management Act 2000
(2008) 163 LGERA 429
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Blundell v Vardon (1907) 4 CLR 1463 at 1513
Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442
Burnum Burnum v Gandangara Local Aboriginal Land Council (1997) 93 LGERA 148
Cody v J H Nelson Pty Ltd (1947) 74 CLR 629
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 48 FCR 280
Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576
Commonwealth v Baume (1905) 2 CLR 405
Connolly v Electoral Commissioner of New South Wales (1992) 76 LGRA 104
Cutelli v Wyong Shire Council [2007] NSWLEC 137
Darkingjung Pty Ltd v Darkingjung Aboriginal Land Council [2006] NSWSC 42
Dodd v Gandangara Local Aboriginal Land Council (1999) 106 LGERA 189
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 617
Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274
IW v City of Perth (1997) 191 CLR 1
In Re Wood (1988) 167 CLR 145
Kioa v West (1985) 159 CLR 550
Kruger v Commonwealth (1997) 190 CLR 1
Lane v Atkin (1922) 30 CLR 437
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94
Martin v Nicholson (1850) 1 Legge 618
McDonald v Keats [1981] 2 NSWLR 268
McGovern v Ku-ring-Gai Council (2008) 161 LGERA 170
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11
National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573
Newcastle City Council v Caverstock Group Pty Ltd and Anor (2008) 163 LGERA 83
Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404
Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57
Re Walsh [1971] VR 33
Save Our Street Inc v Settree and Another (2006) 149 LGERA 30
Scharer v State of New South Wales (2001) 53 NSWLR 299
Shergold v Tanner (2002) 209 CLR 126
Teoh v Hunters Hill Council [2008] NSWLEC 263
Yanner v Minister for Aboriginal and Torres Strait Islander Affairs (2001) 108 FCR 543

TEXTS CITED: Aronson M et al, Judicial Review of Administrative Action, 4th Edition, Lawbook Co, Sydney 2009
Pearce D C and Geddes R S, Statutory Interpretation in Australia, 6th edition, LexisNexis Australia 2006

DATES OF HEARING: 25 August 2008
26 August 2008
8 December 2008
9 December 2008

DATE OF JUDGMENT:
4 May 2009

LEGAL REPRESENTATIVES: APPLICANT/FIRST CROSS-DEFENDANT
Mr S Docker
SOLICITORS
Conroy Stewart Spagnolo

FIRST RESPONDENT/FIRST CROSS-CLAIMANT
Mr J Kirk
SOLICITORS
Chalk and Fitzgerald Lawyers
SECOND RESPONDENT
Mr A McAvoy
INSTRUCTED BY
Registrar, Aboriginal Land Rights Act 1983
SECOND AND THIRD CROSS-DEFENDANTS
Ms C Spruce
SOLCITORS
Crown Solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

4 May 2009

40616 of 2008 Laurie v NSW Aboriginal Land Council and Ors; New South Wales Aboriginal Land Council v Laurie and Ors
JUDGMENT

1 Her Honour: The Aboriginal Land Rights Act 1983 (the ALR Act) introduced provisions for land rights for Aboriginal people in NSW. The ALR Act established aboriginal land councils in which land was vested for the benefit of Aboriginal people. The Act established three tiers of aboriginal land councils at the local, regional and state level. At the state level the NSW Aboriginal Land Council (the NSWALC) consisted of 13 councillors elected by members of each of the 13 regional aboriginal land councils. Each regional aboriginal land council was made up of representatives elected by members of the local aboriginal land councils in each region.

2 In February 1997, a review of the Act was announced to address recommendations made after an ICAC investigation into the operation of Aboriginal land councils. The review of the Act culminated in the Aboriginal Land Rights Amendment Act 2001. New provisions specified the circumstances in which councillors and office-bearers were to be disqualified from holding office on land councils.

3 Another review of the Act occurred in 2004. This review led to the Aboriginal Land Rights Amendment Act 2006 which extensively amended parts of the ALR Act. The 13 regional aboriginal land councils were replaced by nine regional electoral forums, each comprised of the chairpersons of each of the local aboriginal land councils in the region. The nine regional electoral forums each elect a councillor for the region to represent them on the NSWALC. Additional provisions expanding the circumstances in which councillors would be disqualified from holding office were added to the ALR Act. These provisions are the subject of these proceedings.

4 The Applicant was elected as a councillor of the NSWALC for the north coast region of New South Wales in May 2007, the first election of members of the NSWALC after the 2006 amendments to the ALR Act.

5 The Applicant was convicted of a particular driving offence in 2003 (the 2003 driving conviction). A complaint by the First Respondent, the NSWALC, to the Registrar about another driving conviction in 2008 was made after her election. The Registrar investigated whether the Applicant was disqualified from holding office as a councillor of the NSWALC under s 132(1)(c) of the ALR Act. Section 132 was introduced into the ALR Act as part of the 2006 amendments (in force from February 2007). Following that investigation both the Registrar and the NSWALC formed the view that the Applicant was disqualified from holding office because of the 2003 driving conviction. The NSWALC wrote to the Applicant in June 2008 stating that she was not able to act as a councillor for her region and should not receive her entitlements as a councillor. The Applicant commenced these proceedings to seek an order inter alia restraining the NSWALC from interfering with the performance of her functions as a councillor under the ALR Act.

6 The Registrar is appointed under s 164 of the ALR Act. The functions of the Registrar are set out in s 165 and include in subsection (i) the functions conferred by the Act. Under s 132(2) of the ALR Act the Registrar may determine that the conviction for an offence referred to in s132(1), which disqualifies a councillor from holding office, should be ignored. The Applicant applied to the Registrar with submissions dated 10 March 2008 to have him determine whether her 2003 driving conviction should be ignored under s 132(2). The Registrar made a determination in May 2008 that the Applicant’s driving conviction not be ignored under s 132(2). The Applicant seeks an order that the Registrar’s determination in May 2008 under s 132(2) of the ALR Act not to ignore the Applicant’s driving conviction be set aside. The Registrar is the Second Respondent.

7 A cross-claim has been filed by the NSWALC seeking orders to set aside the decision of the returning officer for the election of councillors on 22 May 2007 to declare the Applicant elected as a councillor, inter alia. The returning officer is an employee of the Electoral Commissioner (the Third Respondent). He was nominated by the Electoral Commissioner as the returning officer for the election pursuant to s 121(3) of the ALR Act. Additional orders are sought by the NSWALC that the election of the Applicant was invalid and that a new election for the position of councillor for the north coast region ought be held. These orders are opposed by the returning officer and the Electoral Commissioner (together referred to as the returning officer), the Second and Third Cross-Defendant respectively, and the Applicant (the First Cross-Defendant).

Evidence on Applicant’s claim and the cross-claim

8 The Applicant swore an affidavit dated 24 June 2008. It sets out the relevant events concerning her driving offence on 14 September 2002 of driving whilst disqualified under s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998, her plea of guilty to that offence, her conviction on 11 March 2003 and her disqualification from driving for two years from 11 March 2003 to 10 March 2005. The affidavit details her nomination as a candidate for the 2007 NSWALC elections as councillor for the north coast region of NSW and her performance of duties as a councillor since being elected.

9 A bundle of documents was filed by the Applicant and contains the explanatory note to the Aboriginal Land Rights Amendment Bill 1995, a ministerial statement in respect of that bill, a second reading speech and committee report in respect of that bill, the proclamation in respect of the subsequent Act on 8 November 1995, the proclamation in respect of the Aboriginal Land Rights Amendment Act 2001 on 23 October 2002, the proclamation in respect to the Aboriginal Land Rights Amendment Act 2001 on 31 January 2007 and the Applicant’s payslip from NSWALC of 11 June 2008. An agreed bundle of documents was also filed and included, inter alia, the Applicant’s nomination, statutory declaration and the notice of declaration of election.

10 The following chronology is reproduced from the parties’ submissions and pleadings. There is no dispute about the events in the chronology, only what their legal effect is in light of the ALR Act provisions concerning the election and disqualification of councillors.

14 September 2002 The Applicant drove whilst disqualified and was subsequently issued a summons out of Maclean Local Court

11 March 2003 The Applicant is convicted in Maclean Local Court of driving whilst disqualified under s 25A(1)(a) Road Transport (Driver Licensing) Act 1998 (the driving offence) and is disqualified from driving for two years until 10 March 2005

Late 2006/
early 2007 The Minister for Aboriginal Affairs determined, in consultation with NSWALC, the date upon which elections for the offices of councillor for the NSWALC Regions would be held pursuant to s 122 of the Act. The Second Cross-Defendant, an employee of the Electoral Commission, was appointed the returning officer for the election: s 121(3) of the ALR Act.

February 2007 Public notice given by the Second cross-defendant that the elections for the offices of councillors of NSWALC would be held on 19 May 2007

7 February 2007 The ALR Amendment Act 2006 commences, s 132 takes effect. Because of the driving offence the NSWALC alleges that the Applicant was disqualified from holding the office of councillor of NSWALC by force of s 132(1)(c) of the ALR Act, until 11 March 2008

26 March 2007 Second cross-defendant calls for nominations for candidates for the elections for the offices of councillor of NSWALC, with nominations closing at noon on 23 April 2007

20 April 2007 The Applicant nominates as a candidate in the election to be held on 19 May 2007 for the office of councillor of the North Coast Region of NSWALC including swearing a statutory declaration that incorrectly states that she is not disqualified from holding office under s 132 of the Act

23 April 2007 The Applicant is nominated as a candidate in the election after acceptance of the nomination by the returning officer

19 May 2007 The election is held

22 May 2007 The returning officer returning officer declares the Applicant elected as councillor for the North Coast Region of NSWALC

30 May 2007 The Applicant takes office as a councillor of NSWALC upon the end of the period of administration of the Council: cl 99A, ALR Regulation

17 and 25 January 2008 NSWALC complains to Registrar that the Applicant is in breach of s 132(1)(c). The Registrar commences an investigation.

Relevant legislation

11 It is necessary to set out at length the divisions of the ALR Act and the ALR Regulations concerning the election and disqualification of councillors which apply in this case.

Aboriginal Land Rights Act 1983

Part 7 - NSW Aboriginal Land Council

12 Division 1 concerns the constitution of the NSWALC. Division 2 s 106 identifies the extensive functions of the NSWALC.

Division 3 Councillors of NSW Aboriginal Land Council

13 Section 120 is headed “Membership of New South Wales Aboriginal Land Council” and provides:

(1) The New South Wales Aboriginal Land Council is to consist of an Aboriginal councillor elected for each Region.

(2) The councillors are to be full-time.

(3) Subject to this Act, a councillor holds office for a period beginning on the councillor’s election and expiring:

(a) on the councillor’s election for another term, or

(b) on the election of the councillor’s successor.

(4) A councillor is eligible (if otherwise qualified) for re-election.

(5) A councillor is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975.

(6) A councillor is entitled to be paid such travelling and other allowances as the Minister may from time to time determine in respect of the councillor.

…

14 Section 121 is headed “Election of councillors” and provides:

(1) Each councillor is to be elected in the manner specified in this Division to represent a Region.

(2) The regulations may make provision for or with respect to the election of councillors.

(3) The Electoral Commissioner for New South Wales, or a person employed in the office of and nominated by the Electoral Commissioner, is to be the returning officer for elections of councillors.

(4) A person is not qualified to stand for election, or to be elected, as a councillor representing a Region unless the person is a voting member of a Local Aboriginal Land Council the area of which is within the Region.

(5) A person is entitled to vote at an election for a councillor to represent a Region if the person is a voting member of a Local Aboriginal Land Council the area of which is within the Region.

(6) A person is only entitled to cast his or her vote in respect of the Local Aboriginal Land Council area in which the person has voting rights.

15 Section 123 is headed “Declaration of election” and provides:

If the returning officer for an election of councillors is advised by a regional electoral officer that the result of the counting of votes is that a candidate has been elected, the returning officer must immediately publicly declare the candidate elected as a councillor

16 Section 124(2) provides:

(2) A candidate who is publicly declared elected as a councillor by the returning officer holds that office until the determination of any proceedings disputing the validity of the election of the candidate.

17 Section 125 is headed “Method of disputing elections and returns” and provides:

(1) The validity of an election for a councillor to represent a Region, 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.

(3) In determining an application under this section, the Court has the same powers as are conferred by section 161 of the Parliamentary Electorates and Elections Act 1912 on the Court of Disputed Returns.

(4) The returning officer is entitled to be represented at the hearing of an application under this section.

Division 4 Removal from office

18 Section 132 is headed “Grounds for disqualification from office” and provides:

(1) A person is disqualified from holding office as a councillor of the New South Wales Aboriginal Land Council if the person:

(a) has a conviction in New South Wales or elsewhere for an offence relating to the management of a corporation that was recorded within the last 5 years, or
(b) has a conviction for an offence under this Act that was recorded within the last 5 years, or
(c) has a conviction in New South Wales for any other offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable that was recorded within the last 5 years, or

(d) is a mentally incapacitated person, or
(e) is or becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(f) is or was a director or person concerned in the management of a body corporate that is the subject of a winding up order or for which a controller or administrator has been appointed under the Corporations Act 2001 of the Commonwealth during the previous 3 years, or
(g) is disqualified from holding office in or being concerned in the management of a corporation under any law of this or any other State or Territory or the Commonwealth, or
(h) is an employee of, or a consultant to, the Council, or
(i) in the case of a councillor, engages in other paid employment, or
(j) was, on 2 or more occasions before an administrator was appointed to the Council, an officer of the Council, or
(k) fails, without a reasonable excuse, for a period of 3 months or more to comply with a written requirement by the Council to undergo training under section 125, or
(l) is disqualified from being a Board member, other than on the ground that the person is a councillor.

(2) The Registrar may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.
(3) The Registrar may determine that a person is not disqualified on the ground set out in subsection (1) (j) if the Registrar is satisfied that it is appropriate in the circumstances that the person not be disqualified on that ground.

19 The driving offence for which the Applicant was convicted in 2003 was punishable by imprisonment for more than 12 months and is therefore an offence referred to by s 132(1)(c). If s 132(1)(c) applies, the Applicant would have been disqualified from being a councillor for five years from the date of conviction, that is until 11 March 2008.

20 Section 133 is headed “Vacancy in office” and provides:

A person who is a councillor of the New South Wales Aboriginal Land Council vacates office if the person:

(a) dies, or

(b) is absent from 2 consecutive meetings of the Council of which reasonable notice has been given to the person personally or by post, except on leave granted by the Council or unless the person is excused by the Council for having been absent from those meetings, or

(c) completes a term of office and is not re-elected, or

(d) resigns the office by instrument in writing addressed to the Council, or

(e) becomes disqualified from holding office as a councillor under this Act, or

(f) represents a Region the area of which is changed.

21 Section 135 is headed “ADT may declare particular offices of New South Wales Aboriginal Land Council vacant” and provides:

(1) Any person may apply to the Administrative Decisions Tribunal for an order declaring that a particular office of a councillor has become vacant under this Act.

(2) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this section.

22 Section 136 is headed “Appeals to Supreme Court against order” and provides:

(1) A person whose office has been declared vacant by order of the Administrative Decisions Tribunal may appeal against the order, on a question of law, to the Supreme Court.

(2) Such an appeal may not be made more than 28 days after the date on which the order is made.

23 Section 137 is headed “Effect of order declaring vacancy” and provides:

An order declaring a vacancy in an office made by the Administrative Decisions Tribunal under this Division takes effect:

(a) if no appeal to the Supreme Court is made against the order, at the end of the period during which such an appeal may be made, or

(b) if such an appeal is made within that period and the order is confirmed on appeal, when the order is confirmed, or

(c) if, within that period, the person against whom the order is made serves on the Chief Executive Officer of the New South Wales Aboriginal Land Council written notice of intention not to appeal against the order, when the notice is lodged.

Aboriginal Land Rights Regulation 2002

Division 1- Calling of election of councillors of NSWALC

24 Clause 47 “Manner of nominating candidates” provides:

(1) A nomination of a candidate for election as a councillor must:

(a) be made by no fewer than 6 persons (other than the candidate), each of whom is entitled to vote in the election, and

(b) be in a form approved by the returning officer, and

(c) be signed by the candidate stating that he or she consents to the nomination and is qualified to stand for election, and

(c1) be accompanied by a statutory declaration by the candidate, in a form approved by the returning officer, that the candidate is not disqualified from holding office under section 132 of the Act, and

(d) be accompanied by a deposit of $50 in the form of cash, money order or bank cheque, and

(e) be lodged with the returning officer before the close of nominations in the election.

(2) A person can only nominate one candidate in an election of a councillor for a Region.

(3) A nomination paper is not open for public inspection.

(4) A failure to comply with the requirements of subclause (1) in relation to the nomination of a candidate must be rectified by the candidate before the date fixed for the close of nominations.

25 The statutory declaration sworn by the Applicant pursuant to cl 47(1)(c1) that she was not disqualified from holding office under s 132 was incorrect. Because of the 2003 driving conviction the Applicant was disqualified from holding office under s 132 of the Act.

26 Clause 48 “Rejection of nomination” provides:

(1) The returning officer is to reject the nomination of a person as a candidate at an election if:

(a) the person is not qualified to stand for election, or

(b) the person is not nominated in accordance with clause 47 and any failure to comply with the requirements of clause 47 (1) is not rectified as provided by that clause.

(2) The deposit accompanying the nomination is to be retained pending the election.

Division 6 - Miscellaneous electoral provision

27 Clause 80 - Decisions of returning officer:

Subject to the Act, a decision by the returning officer on any matter relating to the conduct of an election is final if the decision is required or permitted to be made by the returning officer by this Regulation.

28 Clause 83 – Offences – provides:

A person must not:

…

(c) make a false or wilfully misleading statement:

(i) to the returning officer, a regional electoral officer or a deputy electoral officer in connection with an election, or

(ii) in any document that the person furnishes for the purposes of an election, or

…

Maximum penalty: 5 penalty units.

Crimes (Sentencing Procedure) Act

Previous amending Acts

29 The provisions of the ALR Act considered in these proceedings were largely introduced by amendments to that Act in 2006 which took effect on 7 February 2007. The amendments, now found in Div 3 and Div 4, introduced several new provisions concerning the election and disqualification of councillors. In the Second Reading Speech which introduced the Bill in the Legislative Assembly, the Minister for Aboriginal Affairs stated:

…the bill is modernising the legislation to recognise that the Aboriginal Land Rights Act is moving into a new area of economic and social development for Aboriginal Land Councils. Reforms to the Local Aboriginal Land Council structure are designed to create better decision-making and fairer participation in land councils…the bill disqualifies persons from holding office as a board member or councillor where they have convictions for certain offences recorded within the past five years. Such convictions include where a person has been involved in the management of a corporation, or a matter relating to the Aboriginal Land Rights Act, or any other offence that is punishable by imprisonment for 12 months or more.

30 Prior to the 2006 amendment the grounds for disqualification as a councillor were much more limited and contained in Div 5, s 111A of the ALR Act which provided:

A person who is convicted of an offence under Part 3 (except section 61), 4, 4A or 5 of the Crimes Act 1900 is disqualified from holding office as a councillor for 5 years from the date of conviction.

Applicant’s Claim against NSWALC

31 Detailed Amended Points of Claim (APOC) have been filed which set out the grounds of the Applicant’s claim. There is no dispute that the Court has jurisdiction under s 20(2) of the Land and Environment Court Act 1979 (the Court Act) to determine the Applicant’s claims as she is enforcing a right under an environmental and planning law referred to in s 20(3). The ALR Act (except for Div 5 Pt 7) is a planning or environmental law; s 20(3)(a) of the Court Act.

32 The relief claimed is a declaration that the Applicant has held the office of councillor of the NSWALC for the north coast region under the ALR Act since the declaration of the election for the north coast region on 22 May 2007 and continues to hold that office. An order restraining the NSWALC from interfering with the performance of her duties as councillor is also sought. A further order that the NSWALC pay the Applicant’s remuneration, travelling and other allowances to which she is entitled as a councillor is also sought.

33 There is correspondence from the NSWALC in evidence which states that it does not consider the Applicant should remain as a councillor or receive her allowance and remuneration. The parties have reached agreement that the Applicant will continue in her position as councillor and that payment will continue pending the outcome of this case.

34 In the APOC the Applicant accepts that on 7 February 2007 she was disqualified from holding office as a Councillor on the NSWALC until 11 March 2008 pursuant to s 132(1)(c) of the ALR Act because the amendments to the ALR Act which introduced s 132(1)(c) of the ALR Act came into force on that day. Her disqualification is subject to a determination by the Registrar under s 132(2) that the 2003 driving conviction be ignored for the purpose of s 132(1).

(a) on her election for another term;

(b) on the election of her successor;

(c) when this Court hearing an application under section 125 disputing the validity of her election determines otherwise; or

(d) when her office becomes vacant.

11. Ms Laurie has not been elected for another term.

12. No successor to Ms Laurie has been elected.

13. Pursuant to s125(1) of the ALR Act, the validity of Ms Laurie’s election as councillor to represent the North Coast Region on the NSWALC may be disputed by an application to this Court and not otherwise.

14. Pursuant to s125(2) of the ALR Act, an application to dispute Ms Laurie’s election as councillor to represent the North Coast Region on the NSWALC may be made within 28 days of the declaration of her election.

15. No application was made to this Court pursuant to s125(1) of the ALR Act to dispute Ms Laurie’s election within 28 days of Ms Laurie being declared elected as councillor to represent the North Coast Region on the NSWALC.

16. Ms Laurie’s office has not become vacant.

17. By reason of the matters pleaded … above, Ms Laurie holds and has held the office of councillor to represent the North Coast Region on the NSWALC since the declaration of her election on or about 19 May 2007.

Applicant’s submissions

35 The Applicant was qualified to stand for election and be elected as councillor to represent the north coast region of NSW pursuant to s 121(4). She nominated for that election and was declared elected pursuant to s 123 by the returning officer. She therefore became the person referred to in s 120(1) and s 121(1) elected for that region. By reason of s 120(3) and s 124(2) the Applicant held the office of councillor when the declaration was made. Nothing has occurred since then to dislodge the Applicant from office so it follows that the Applicant continues to hold office as councillor of the NSWALC. No application was made to this Court in its capacity as a court of disputed returns to contest her election and her office has not become vacant. The NSWALC, by its Chief Executive Officer, interfered with the Applicant’s performance of her functions as councillor representing the north coast region on the NSWALC in May 2008 by cutting off the remuneration and allowances to which she is entitled as a councillor under s 120(5) and (6) of the ALR Act. The Applicant is entitled to seek relief pursuant to s 20 of the Court Act from the Court as she is enforcing a right conferred by an environment and planning Act (which is not disputed by the NSWALC).

36 In relation to the cross-claim, the Applicant submitted that an election is a series of steps taken by different people under the ALR Act including the Minister (in calling for an election), the Electoral Commissioner, candidates and electors. These are administrative steps not amenable to judicial review, relying on McDonald v Keats [1981] 2 NSWLR 268 per Powell J at 284 and Dodd v Gandangara Local Aboriginal Land Council (1999) 106 LGERA 189 per Pearlman J at [55]-[56].

37 The election of councillors under Div 3 Pt 7 of the ALR Act is separate from the removal of councillors from office and the filling of casual vacancies in Div 4. Each division is a comprehensive regime dealing with the subject matter and there is a clear demarcation between them. Division 3 is a comprehensive code for the constitution of the NSWALC, the qualification of persons to stand for election and be elected, the calling and conducting of elections for all councillors, the declaration of councillors, councillors to remain in office and for the constitution of NSWALC to be preserved pending disputes to elections and disputes to elections. Compliance with the Division ensures certainty.

38 Division 4 on the other hand provides for the removal of councillors from office comprehensively by defining the circumstances in which a person is disqualified from holding office, the circumstances in which a councillor vacates office, mechanisms for filling vacancies in the office of councillor and a mechanism for obtaining an order declaring a particular office has become vacant. Division 4 not only provides for the removal of councillors from office, it does so in a way that maintains their right to remain in office pending the completion of the process and preserves the validity of the constitution of NSWALC. This is done by providing for a certain time at which an order declaring an office vacant takes effect. While s 120(3) of Div 3 states that councillors hold office subject to the ALR Act that does not mean that Div 4 operates in relation to the election process regulated in Div 3.

39 The concept of holding the office of councillor was explained by Isaacs J in Lane v Atkin (1922) 30 CLR 437 at 444. A civic office in that case was described as an abstract statutory creation existing before the person is elected and existing in perpetuity, the occupancy of which the statute regulates. In s 132 and s 133 a distinction is drawn between vacating office and being disqualified from holding office and s 137 provides for an order declaring an office vacant to operate at a future time. The only sensible way of reading these provisions together is for disqualification under s 132 to have no effect of itself on whether a person holds office, for s 133 to have the effect of the person ceasing to hold office if they voluntarily relinquish it or die and for s 137 to have effect according to its terms. Once a person is elected as a councillor he or she remains in office until he or she dies, leaves voluntarily, or the Administrative Appeals Tribunal (ADT) makes an order under s 135 that a councillor’s position is vacant and that order takes effect in the time frame nominated in s 137.

NSWALC’s submissions

40 The NSWALC submitted that the orders sought by the Applicant should not be made. The Applicant admitted that the statutory declaration she signed dated 11 April 2007 and provided to the returning officer was false (modified in oral submissions to “incorrect”). The statutory declaration purported to address the requirements of cl 47(1)(c) of the Regulation which require a candidate to declare he or she would not be disqualified from holding office as a councillor, and the declaration sworn was incorrect in that respect. The Applicant admitted that from 7 February 2007 until 11 March 2008 she was disqualified from holding office as a councillor (cl 7 points of claim and cl 9 first cross-defence). Further, the Applicant has never held the office of councillor. There is no dispute that the Court has the jurisdiction to determine the Applicant’s claim under s 20(2) of the Court Act.

41 Because the NSWALC response to the Applicant’s claim is otherwise contained in its cross-claim it is necessary to consider that together with the Applicant’s claim.

Cross-claim by NSWALC

42 As well as opposing the orders sought by the Applicant the NSWALC has filed a cross-claim naming the Applicant as First Cross-Defendant and the returning officer and Electoral Commissioner as Second and Third Cross- Defendants respectively.

43 The NSWALC seeks the following relief as outlined in the First Cross-Claimant’s Amended Statement of Cross-Claim:

1. A declaration that the purported declaration by the Second Cross-Defendant dated 22 May 2007 that the First Cross-Defendant was elected as councillor for the North Coast Region of the NSWALC is void and of no effect.

2. Further in the alternative to order 1, an order quashing the purported declaration by the Second Cross-Defendant dated 22 May 2007 that the First Cross-Defendant was elected as councillor for the North Coast Region of the NSWALC.

3. An order quashing the decision of the Second Cross-Defendant in or about April 2007 not to reject the First Cross-Defendant’s nomination as a candidate for election as a regional councillor of the NSWALC.

4A A declaration that the Cross-Claimant is entitled, in light of s 132(1) (c) of the ALR Act to cease paying the First Cross-Defendant the remuneration and allowances of a councillor of the NSWALC as referred to in s 120(5) and (6) of that Act.

5. An order that:
(a) the Second Cross-Defendant undertake further counting or recounting of the ballot papers cast for candidates in the North Coast Region of the NSWALC on 19 May 2007 for the purpose of determining the candidate entitled to be declared as elected to that office, on the basis that the First Cross-Defendant was not a candidate for that election;
(b) the further counting or recounting of the ballot papers referred to be conducted as nearly as practicable in accordance with cl 76 of the ALR Regulation 2002;
(c) upon the completion of the further counting or recounting, the Second Cross-Defendant declare the election result in accordance with s 123 of the ALR Act.

6A. In the alternative to orders 5 and 6, a declaration that there is a casual vacancy in the office of councillor for the North Coast Region of the NSWALC.

Issues - background

44 The Amended Cross-Claim exhaustively sets out the matters relied on by the NSWALC.

2007 elections for the offices of councillor of NSWALC

a. duly nominated for election in accordance with cl.47 of the Regulation by the close of nominations;

b. qualified to stand for election in accordance with s.121(4) of the Act;

c. not disqualified from holding office under s.132(1) of the Act; and

d. duly elected in accordance with div.3 of the Act and the Regulation.

The First cross-defendant was disqualified

20. At no material time for the purposes of the 2007 election of councillors for NSWALC was the First cross-defendant’s offence ignored for the purposes of the Act.

21. At all material times for the purposes of the 2007 election of councillors for NSWALC the First cross-defendant was and has been disqualified from holding the office of a councillor pursuant to s.132(1) of the Act.

22A Further and in the alternative to the preceding paragraph, if the first cross-defendant was elected at the 2007 election, she immediately vacated office as a councillor for the North Coast Region of NSWALC pursuant to sections 132 and 133 of the Act in light of the 2003 Conviction, and since that time there has been a casual vacancy in the said office.

Failure properly to nominate

Particulars

(a) Clause 47(1)(c1) of the Regulation requires that the nomination of a candidate “be accompanied by a Statutory Declaration by the candidate, in a form approved by the returning officer, that the candidate is not disqualified from holding office under s.132 of the Act”.
(b) Pursuant to clause 83 of the Regulation it is an offence to make a false or wilfully misleading statement to the returning officer in connection with an election, or in any document that the person furnishes for the purposes of an election.
(c) A candidate does not comply with clause 47(1)(c1) unless the Statutory Declaration provided is truthful and correct.
(d) Any statutory declaration provided by the First cross-defendant to the Second cross-defendant for the purposes of the 2007 election was not correct in that it did not disclose the 2003 Conviction.
26. Any failure to comply with the requirements in relation to the nomination of a candidate must be rectified by the candidate before the date fixed for the close of nominations: clause 47(4) of the Regulation.
27. No rectification of the non-compliance referred to in paragraph [25(e)] above was undertaken by the First cross-defendant before the close of nominations at noon on 23 April 2007.
28. Clause 48 of the Regulation provides that the Returning Officer is to reject the nomination of a person as a candidate for an election if either:
a. the person is not qualified to stand for election; or
b. the person is not nominated in accordance with clause 47 and any failure to comply with the requirements of clause 47(1) is not rectified as provided by that clause.

In the premises, the decision of the Second cross-defendant not to reject the nomination of the First cross-defendant was invalid.

Summary of issues

45 Paragraph 13 of the cross-claim identifies the criteria which must be met before a person can be elected. There is no dispute the Applicant satisfies s 121(4). The criteria not satisfied according to the NSWALC are the failure to correctly nominate under cl 47 and that a candidate not be disqualified under s 132(1). Consequently the Applicant was not duly elected as a councillor. In its submissions the NSWALC identified three bases on which it argued the Applicant was not able to hold the office of councillor as a result of failing to satisfy these criteria.

(i) The Applicant was incapable of being elected under the ALR Act and Regulation in May 2007 because she was disqualified from holding office from 7 February 2007 by virtue of s 132(1)(c) which took effect on that date. That incapacity cannot be cured by her nomination and acceptance of the nomination by the returning officer (issue 1). Prayers 1 and 2 relate to this issue.

(ii) Alternatively, a similar argument applies at an earlier stage of the process for election of councillors under the ALR Act. The Applicant’s nomination was not cured by the returning officer accepting her nomination or declaring her elected as a councillor. Consequently her nomination was null and void (issue 3). Prayer 3 concerns this issue.

(iii) In the event that the Applicant was able to take office by virtue of s 120(3) and s 124(2), (3) of the ALR Act when still disqualified from holding office, the Applicant immediately vacated the office of councillor by force of s 133(e) of the ALR Act (issue 2). The relief in relation to this issue is found in prayer 6A, a declaration that there is a casual vacancy of councillor for the north coast region.

46 The numbering of the issues reflects the way matters were presented at the hearing.

A. Was the Applicant elected as councillor in May 2007 (issues 1, 3 of cross-claim)

47 There is no dispute that the Court has jurisdiction to determine the Applicant’s claim for relief pursuant to s 20(1)(e) and (2) of the Court Act. These proceedings are enforcing a right to hold office and to discharge functions under s 120 and s 123-124 of the ALR Act. Her right to remuneration and expenses is found in s 120(5),(6). The Court’s jurisdiction to determine the NSWALC’s cross-claim is disputed by the Applicant and the returning officer.

(i) Court’s jurisdiction to determine NSWALC cross-claim (issues 1 and 3)
Relevant provisions in the Court Act

48 Sections 16(1) and 16(1A) provide:

(1) The Court shall have the jurisdiction vested in it by or under this or any other Act.

(1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.

49 Section 20 of the Court Act relevantly provides:

(1) The Court has jurisdiction (referred to in this Act as “Class 4” of its jurisdiction) to hear and dispose of:

…

(dd) proceedings under Division 5 of Part 7 of the Aboriginal Land Rights Act 1983,

(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings:

(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,

(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and

(d) whether or not as provided by section 68 of the Supreme Court Act 1970—to award damages for a breach of a development contract.

(2A) The Court has jurisdiction to hear and dispose of proceedings referred to in subsection (1) (dd).

(3) For the purposes of subsection (2), a planning or environmental law is:

(a) any of the following Acts or provisions:

Aboriginal Land Rights Act 1983 (other than Division 5 of Part 7),

Applicant/Cross-Defendant’s submissions

50 The cross-claim disputes the validity of the Applicant’s election and seeks orders for relief which render her election void. The Applicant (and the returning officer) disputed that the Court has jurisdiction to determine the first cross-claim pursuant to the Court’s general powers in s 20 of the Court Act. The cross-claim does not assert a right under an environmental planning law.

51 The only basis on which the validity of an election can be disputed in the Court is as a court of disputed returns under s 125(1) of the ALR Act. That section confers exclusive jurisdiction on the Court and achieves finality in the declaration of an election result, see the unanimous judgment of the High Court in In Re Wood (1988) 167 CLR 145 at 160 and Dodd v Gandangara Local Aboriginal Land Council & Ors per Pearlman J at [56]. That exclusivity is conferred by s 124(2) and (3)(a) and the powers of the Court in s 125(3) of the ALR Act. Section 128(1) states that a decision of the Court under s 125 is final and conclusive and without right of appeal. There is a strict time frame for challenging an election under s 125(1) of 28 days from the date the returning officer publicly declared the result of the election.

52 Sections 20(1)(e) and (2) of the Court Act do not confer jurisdiction on the Court to hear the first cross-claim as it is inconsistent with s 125 of the ALR Act. That section was enacted after s 20 of the ALR Act and would render the temporal limitation ineffective. Further, s 20(1)(e) and (2) of the Court Act do not apply to disputes on the conduct of elections because such disputes are not in respect of a planning or environmental law as referred to in s 20 of the Court Act.

53 In National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 Kirby P (Mason CJ and Meagher JA concurred on this point) stated at 586 that this Court was a court of defined jurisdiction without an implied incidental power to deal with matters not otherwise falling into its statutorily defined jurisdiction. The cross-claim in relation to the Applicant/First Cross-Defendant seeks a declaration (prayer 4) that she is not and has never been a councillor. It is not a declaration of a right accruing to the NSWALC. Further support for limited jurisdiction of this Court is found in Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494 and Darkingjung Pty Ltd v Darkingjung Aboriginal Land Council [2006] NSWSC 42. There is no “right” in the ALR Act to have a particular kind of person elected. The right to have a properly run election is provided for in s 125, the court of disputed returns jurisdiction.

54 Only the matters in prayers 1, 2 and 3 of the Amended Statement of Cross-Claim concerning the exercise of functions of the returning officer could be construed as matters falling within s 20(2) of the Court Act. However, such functions can only be challenged under s 125 when the Courts sits as the court of disputed returns because the cross-claim is challenging steps in the election process (as per Dodd v Gandangara Local Aboriginal Land Council and McDonald v Keats) without a claim having been made pursuant to s 125, the returning officer’s decision concerning the election are final.

55 The Applicant also made lengthy submissions that the Court Act is incorrect when it refers to Div 5 Pt 7 in s 20(3). Div 5 Pt 7 should be read as referring to s 125 in Div 3, inter alia.

56 In Re Wood is distinguishable. In that case the High Court dealt with a senator’s eligibility to be elected under a division of the Commonwealth Electoral Act 1918 (Cth). The division conferred specific jurisdiction on the High Court to deal with referrals from either House of Parliament in relation to qualifications and vacancies. Section 360 is the equivalent of s 161 of the Parliamentary Electorates and Elections Act 1912 (Cth). The High Court held that conferral of jurisdiction was not read down by the existence of the court of disputed returns jurisdiction. The High Court held that Senator Wood was not elected as a senator and never held the position. In Re Wood is distinguishable because in this case the Applicant was not disqualified from being elected but only from holding office. She was qualified to stand and be elected. The Commonwealth Electoral Act includes provisions relating to candidates’ qualification to stand and be elected. The ALR Act has different provisions. The Commonwealth Electoral Act has no s 120(3) or s 124 which provide for the effect of a declaration of an election. In Re Wood provides no basis for questioning the jurisdiction of the election of the Applicant.

Second and Third Cross-Defendants (Returning Officer and Electoral Commissioner) submissions)

57 Eligibility for election is dealt with in s 121(4) of the Act (Div 3 Pt 7). A person must be a voting member of a local aboriginal land council within the region. Section 120(4) provides that a councillor is eligible for re-election. There are no other provisions prescribing criteria that must be met in order to be eligible for election as a councillor. Disqualification is dealt with in Div 4 entitled “removal from office” and s 132 identifies the circumstances in which a person already elected to office will be disqualified from holding office so as to render the office vacant. Section 132 does not establish criteria which must be met in order for a person to be eligible for election.

58 Clause 47 of the Regulation identifies those matters which a candidate for election must satisfy. Clause 48 specifies the circumstances in which the returning officer must reject a nomination. Those are the only grounds on which a person’s candidature can be rejected. The returning officer has no power to reject a nomination of a person other than on the grounds set out in cl 48. Following an election, a returning officer has no discretion not to declare a candidate elected once s 123 is enlivened. That is confirmed by s 124(1) which provides that s 123 applies even if there is an application to dispute the election in the court of disputed returns under s 125. Section 124(3) is a statutory enactment of the common law de facto officer doctrine. A candidate who is publicly declared elected as a councillor is taken to hold office and is competent to carry out all the functions and duties of that office until a court of disputed returns decides otherwise under s 125, or the term of office expires, or the position becomes vacant. The scheme under s 123 and s 124 is unambiguous and provides certainty.

59 In light of these legislative provisions, the Court has no jurisdiction to declare the election invalid as the 28 days appeal period for the court of disputed returns has elapsed. There is an exclusive “code” for the declaration of invalidity of elections; see McDonald v Keats per Powell J at 27A.

NSWALC’s submissions

60 In its oral submissions the NSWALC submitted the following:

(i) The Applicant conceded that prayers 1 to 3 of the Amended Statement of Cross-Claim fall within s 20(2) of the Court Act. The same can be said about prayers 4 to 6A of the relief claimed.

(ii) If the Applicant can pursue her claim for relief, which is not disputed, the NSWALC claim is the reverse to that claim and can also be pursued. There cannot be a right as the Applicant asserts without a duty and the NSWALC cross-claim asserts that duty. Prayer 4A of the cross-claim seeks an order that the NSWALC is entitled to cease paying the Applicant remuneration and allowances as a councillor as provided in s 120(5) and (6). That is directly responsive to one of the orders sought by the Applicant.

(iii) Further the claim is ancillary to the issues raised before the Court and can be determined under s 16(1A) of the Court Act. This is confirmed by Scharer v State of New South Wales (2001) 53 NSWLR 299 per Stein JA at [51] (Hodgson JA concurring) in 2001 which refers to the incidental, accessory or auxiliary nature of the ancillary jurisdiction.

(iv) The Court has considered these kinds of cases before without there being a dispute about jurisdiction, see Connolly v Electoral Commissioner of New South Wales (1992) 76 LGRA 104 per Pearlman J. It is accepted by the Applicant that that case does not meet the repealed jurisdiction point also raised.

(v) The Applicant’s submissions (par 55) based on the Court Act being in error in referring in s20(3) to Div 5 Pt 7 should not be accepted. It is inherently unlikely. Section 20(2) operates in any event even if s 20(3) did not. Further even if Div 5 Pt 7 should be read as referring to s 125 in Div 3, the NSWALC does not rely on those provisions but seeks to distinguish them. The NSWALC relies on s 132 and s 133 in Div 4. (I agree with these submissions and do not need to further consider this part of the Applicant’s case.)

61 The written submissions stated as follows: the distinction between qualification of candidates for office and vacancy of electorates and disputed elections has been addressed historically by the courts in Australia; see French J in Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 at 449-454. The distinction has continued in legislation in various jurisdictions including the ALR Act. In Re Walsh [1971] VR 33 the full court of the Victorian Supreme Court held a person was not capable of being elected to the Legislative Council within the meaning of s 73 of the Constitution Amendment Act 1958 (Vic) as he had been previously convicted of a felony. French J referred to this decision approvingly in Blurton at 453.

62 The NSWALC submitted that qualification was a necessary condition to a valid election and had to be fulfilled by the candidate chosen. Disqualification is a correlative concept.

63 The issue of disputed returns, while broader, overlaps with that of qualification, see Blurton per French J at 453-4 and also by implication in In Re Wood at 162-4. A wide range of issues can be dealt with under the concept of disputed returns. When this Court sits as a court of disputed returns under s 125(3) of the ALR Act the Court has the same powers as conferred by s 161 of the Parliamentary Electorates and Elections Act and those powers are very wide.

64 In In Re Wood the High Court considered the overlap between the two areas of disputed returns and election qualifications and held that it did have jurisdiction to determine whether Senator Wood had been qualified to be elected and therefore whether his Senate position was vacant despite the time for making an application to the court in a capacity as a court of disputed returns having elapsed.

65 The Applicant’s submissions that the Court lacks jurisdiction are wrong. The 28 day period for mounting a challenge to an election under s 125(2) of the ALR Act is irrelevant for the same reasons as were found in In Re Wood by the High Court. The basis for distinguishing In Re Wood because this Court has no additional jurisdiction is wrong. Section 20 of the Court Act provides broad jurisdiction to enforce and make declarations of rights, obligations and duties under the ALR Act. Reliance on s 124(2) and (3) of the ALR Act as affirming her capacity to be elected distinguishes between being qualified to stand and being disqualified from holding office, but disqualification is the converse of qualification. The submission that five years have elapsed since the disqualifying event ignores the fact that she was disqualified from standing at the time of her nomination and election. She was not entitled to be nominated or elected and the election has not been completed.

66 The distinction between disputed returns/elections on the one hand and qualifications/vacancy on the other has been recognised and applied in this Court in relation to the ALR Act, see Burnum Burnum v Gandangara Local Aboriginal Land Council (1997) 93 LGERA 148 and Dodd v Gandangara Local Aboriginal Land Council.

67 The Applicant/returning officer proposed that s 125 of the ALR Act is the only mechanism for challenging an election of a councillor under the ALR Act. Further the Applicant argued that s 125 impliedly repeals s 20(2) to the extent that if a matter falls within the s 125 jurisdiction it does not fall within the general jurisdiction in s 20(2) of the Court Act. It is not legally correct to imply limitations on a general grant of jurisdiction such as s 20 of the Court Act, see the unanimous judgment of the High Court in Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404 at 421. Further, there is no implied repeal simply because s 125 of the ALR Act was enacted after s 20 of the Court Act. A similar argument was rejected in a unanimous judgment of the High Court in Shergold v Tanner (2002) 209 CLR 126 at 136-137. Both s 20 of the Court Act and s 125 of the ALR Act can stand together as the latter deals only with disputed elections and returns. It does not deal with every type of legal issue that may arise in relation to the election of a councillor to NSWALC. Nor does it address the issue of qualifications.

68 Similar wording to s 125(1) was considered in In Re Wood as s 353(1) of the Commonwealth Electoral Act is in similar terms yet did not restrict the additional jurisdiction under s 376 of that Act (see In Re Wood at 158-162). The construction of s 125(1) that it applies to matters of disputed elections and returns is entirely orthodox. Qualification for office can be dealt with either by way of disputed returns or by way of other legal challenge, in this case by invoking this Court’s jurisdiction conferred by s 20 of the Court Act.

Finding on jurisdiction in relation to issue 1 and 3 of cross-claim

69 Given that the Applicant was declared elected by the returning officer on 22 May 2007 and took office as provided for by s 120(3), s 124(2) and (3), if the NSWALC’s cross-claim is not upheld she would be entitled to the declarations she seeks (subject to my determination on issue 2 which arises if she was elected). As part of determining if the declaration sought by the Applicant that she was elected and continues to be elected ought be made, it is necessary to consider the cross-claim by the NSWALC submitting that she was not validly elected and her election is void (issue 1) or that the nomination of the Applicant and the acceptance of the nomination was in breach of cl 47 and 48 so that the declaration by the returning officer of her election as councillor was null and void (issue 3). Whether the Court has jurisdiction to determine issues 1 and 3 must first be determined.

Does s 20 of the Court Act apply?

70 The NSWALC bears the onus of establishing on the balance of probabilities that this Court can determine its cross-claim; Owners of ‘Shin Kobe Maru’ at 426. The starting point in determining whether the Court does have jurisdiction is whether the Court has power under s 20(2) to determine the cross-claim. The Applicant is enforcing a right under s 20(2) of the Court Act. The NSWALC’s submission is that it is enforcing a correlative duty which falls on the Applicant so that it is simply seeking to obtain relief converse to that sought by the Applicant. While that submission has some logical appeal, on closer analysis the NSWALC is not enforcing a right, obligation or duty which it has under the ALR Act. Whether there is a correlative “duty” on the Applicant to make sure she is properly elected which arises from her right to be elected is debateable. Nor can it be said that the NSWALC has a right to certain persons being elected which it is seeking to enforce. I do not consider the cross-claim is enforcing a right or duty of the NSWALC to which s 20(2) can apply. A further reason that the Court would not have jurisdiction under s 20 is that the cross-claim challenges the validity of the Applicant’s election but the court is not sitting as the court of disputed returns under s 125 of the ALR Act and the time to do so under s 125(2) has long expired.

71 I will consider the cases relied on by the NSWALC in order to determine whether s 20(2) of the Court Act provides the Court’s jurisdiction to consider the validity of an election process where it is not sitting as a court of disputed returns. In Blurton, where the Federal Court was not sitting in its capacity as a court of disputed returns, French J discussed the historical distinction between issues of qualification of candidates and vacancies on the one hand and disputed returns on the other in the constitutions of Canada and the United States (at 452). Under s 47 of the Commonwealth of Australia Constitution Act 1900 (the Constitution) questions of qualification, vacancies and disputed elections were determinable by the Houses of Parliament. In 1902 s 192 of the then Commonwealth Electoral Act 1902 (Cth) first provided that the validity of elections could be disputed in the Court of Disputed Returns, (then and now the High Court of Australia). The Commonwealth Electoral Act in s 203 allowed the Houses of Parliament to refer questions on qualifications of members or a vacancy in either house to the court of disputed returns for determination. Section 376 in the current Commonwealth Electoral Act is identical. The historical distinction French J discussed is now reflected and incorporated into the Commonwealth legislation the subject of his judgment. The statutory frameworks he was considering provide specifically for issues about the qualification of candidates to be considered by the court of disputed returns.

72 In Re Walsh the Supreme Court of Victoria dealt with the question of whether a person who had been convicted of a felony was capable of being elected to the Legislative Council of Victoria. The court rejected the submission of Mr Walsh that it did not have jurisdiction to hear the matter because the question was in respect of the capacity of a person to be elected rather than the qualifications of the person. Under s 73 of the Constitution Act Amendment Act 1958 (Vic) any person was qualified to be elected as a member of the Legislative Council provided, inter alia, they have not been convicted of any felony. The court held that the question raised was one in respect of the qualification of a member which could be resolved by the court pursuant to the grant of jurisdiction as a court of disputed returns under s 300 of the Constitution Act Amendment Act.

73 The unanimous decision of the High Court in In Re Wood concerned whether there was a vacancy in the Senate for the place of Senator Wood and if there was how that should be filled. Senator Wood was not qualified to stand for election as he was not an Australian citizen, as required by s 163(1)(b) of the Commonwealth Electoral Act. The time for disputing his election in the High Court acting as a court of disputed returns, as provided for in Pt XXII Div 1 – Disputed Elections and Returns of the Commonwealth Electoral Act, had expired. The initial issue to arise therefore was whether the High Court had jurisdiction to consider the issue of his qualification for standing for office. The court held it did have jurisdiction under Pt XXII Div 2 – Qualifications and Vacancies which division concerned qualifications and vacancies of councillors. That jurisdiction was identified in s 376, which provides that any question concerning the qualification of a senator can be referred to the court of disputed returns by one of the Houses of Parliament. The High Court considered that jurisdiction conferred on the court of disputed returns by Div 2 (Qualifications and Vacancies) was not restricted by the terms of Div 1 (Disputed Elections and Returns) which contained the temporal limitation. Part of the court’s reasoning was based on the language in s 376 being in the same terms as s 47 of the Constitution. The High Court had jurisdiction to determine the issue notwithstanding that it also involved consideration of whether the senator was duly elected and his election void.

74 Equivalent provisions of the Commonwealth Electoral Act, in particular s 376, are not found in the ALR Act. That section refers to the High Court sitting as the court of disputed returns when a reference is made to it under s 376 and was the basis jurisdiction was found to exist in In Re Wood. The High Court’s jurisdiction to consider issues of qualification to be elected is therefore expressed within the statute. The Parliamentary Electorates and Elections Act 1912 (NSW) provides similarly in s175B, as does the Victorian legislation. Reliance on these cases does not assist the NSWALC’s argument as the statutory provisions are different to those in the ALR Act and the Court Act. The cases it relied on concerned a statutory framework that explicitly confers a separate jurisdiction on the court to sit in its court of disputed returns jurisdiction to deal with qualification for office affecting the validity of the election of a candidate. No such provision is contained in the ALR Act.

75 McDonald v Keats, a decision of a single judge of the Supreme Court of NSW, considered whether that court had jurisdiction to determine an attempted challenge to a NSW parliamentary election when the court was not sitting as a court of disputed returns as referred to in s 155 of the Parliamentary Electorates and Elections Act. Section 155 stated that the validity of an election could be disputed in the court of disputed returns and not otherwise. At issue inter alia was whether the court could require the returning officer to recount ballot papers. Powell J held at 274 that the provisions of that Act provided a comprehensive code for the circumstances in which the electoral process could be considered. He did not consider he had jurisdiction to make the orders sought. That case was not dealing with the qualification of a candidate to stand for election but as noted above (par 74) there is a specific section of the Parliamentary Electorates and Elections Act that deals with that issue.

76 Cases decided by this Court have distinguished between the Court sitting as a court of disputed returns under the ALR Act and the exercise of its jurisdiction under s 20(2) of the Court Act. In Burnum Burnum (1997) Pearlman J held at [153[-[154] the application was enforcing compliance with a duty of the local aboriginal land council in relation to the election of councillors. The challenge to the validity of the meeting called pursuant to cl 42 of the now repealed Aboriginal Land Rights Regulation 1996 was not a challenge to the validity of the election and could therefore be considered. The disputed meeting was a means of ensuring that each roll of the local aboriginal land council was complete. That was not a step in the election process and could be considered. Accordingly, the Court had jurisdiction to consider the matter under s 20(2)(a) and (c) and s 20(3). The matter was not excluded by the (then existing) exception in s 20(3) for disputes arising under the then Div 2B of Pt 4 which dealt with the Court’s jurisdiction as a court of disputed returns.

77 In Dodd (1999) the issue was whether the applicant was eligible to stand as a candidate for a regional ALC, which required that he be a member of a local ALC. Pearlman J considered at [57] she could deal with that issue as the matter, like Burnum Burnum, concerned membership of the roll and was not part of the election process. The latter could otherwise be challenged only when the Court sat as a court of disputed returns.

78 In Burnum Burnum and Dodd the matters being considered were held to relate to matters outside the election process. Both cases confirm that the Court considered there was a clear demarcation of jurisdiction. If the election process is to be challenged such challenge must be conducted when the Court sits as a court of disputed returns. Neither case was considering the issue of whether a candidate was qualified to stand for election.

79 The only case in this Court referred in submissions with some similarity to this matter is Connolly v Electoral Commissioner of New South Wales (1992). Pearlman J had to consider the validity of the election process as the issue in that case was whether a candidate elected as a councillor representing the south coast region on the NSWALC was validly elected. Her Honour held the candidate was not qualified to stand and could not be declared elected by the returning officer. There is no discussion of jurisdiction in the judgment, no doubt because it was not raised as an issue. Her Honour does not state whether the Court was sitting as the court of disputed returns (then under s 27AC(1) of the ALR Act) but I infer that is the likely explanation for the Court having jurisdiction as the relief sought included an order preventing the returning officer from declaring the candidate elected to office. The relief sought suggests the action was brought within the time frame required for challenges to the Court when sitting as a court of disputed returns.

80 For completeness I note that the Applicant also referred to two cases determined by the Supreme Court as supportive of the submission that this Court does not have jurisdiction (Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council and Darkingjung Pty Limited v Darkingjung Aboriginal Land Council). In Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council, the applicant was a statutory body established under the ALR Act to conduct a contributory funeral benefit scheme for aboriginal bodies. The respondent was also a statutory body established under the ALR Act that intended to commence a competing scheme. The applicant sought to enforce s 11 of the Funeral Funds Act 1979 which permitted only funeral contribution funds to conduct contributory funeral benefit businesses unless a statutory exemption was applicable. The applicant claimed that the exemption granted to the respondent was void. The respondent submitted the NSW Supreme Court was unable to hear the challenge because the Land and Environment Court of NSW had exclusive jurisdiction to enforce matters arising under the ALR Act pursuant to s 20(1)(e) of the Court Act. Sheller JA (with whom Handley JA and Simos AJA concurred) rejected this submission on the grounds that the proceedings did not seek to enforce any right, obligation or duty conferred or imposed by the ALR Act.

81 In Darkingjung Pty Limited v Darkingjung Aboriginal Land Council, a single judge of the Supreme Court of NSW rejected an argument that it had no jurisdiction to determine the matter due to the exclusive jurisdiction of this Court. The plaintiff, as trustee of a local aboriginal land council trust, sought declarations that money relating to a sale of land was held by the plaintiff on trust. Bergin J determined that the Supreme Court had jurisdiction to hear the matter as the plaintiff was not seeking any relief under the ALR Act that is described in s 20(2) of the Court Act. Aboriginal Community Benefit Fund Pty Ltd and Darkingjung concerned entirely different factual and legal issues to this matter and do not therefore provide great assistance in resolving the question of jurisdiction in this matter. The issues arising in those cases simply did not come within the scope of s 20(2) of the Court Act, which is not the nature of the jurisdictional question I must resolve.

82 The cases of McDonald v Keats, Burnum Burnum and Dodd emphasise that the Court’s jurisdiction to consider the validity of an election as the court of disputed returns is limited by the express terms of the relevant Act, including the ALR Act. The fundamental issue of whether a candidate is qualified to stand for office can be considered by the Court sitting as the court of disputed returns (Connolly), which necessarily requires the application to be made within the specified timeframe in s 125(2).

83 Cases such as In Re Wood, Blurton and Re Walsh reflect different statutory contexts with specific and separate provisions enabling a court to determine the issue of the qualification of a candidate and the validity of an election. Given the clear terms of the ALR Act concerning when the court of disputed returns is to operate in s 125, I do not consider such a separate jurisdiction can be implied, as would have to be the case under the ALR Act. The limits of the court of disputed return jurisdiction of this Court is clear in the ALR Act. There is a limited timeframe for the commencement of any application to it under s 125(2) and the decision of the Court when sitting as a court of disputed returns is final and without appeal (s 128 ALR Act). Those cases cannot provide a basis for jurisdiction to be implied under s 20 of the Court Act.

84 While the NSWALC argued that there should not be an implied repeal of jurisdiction in the absence of an express repeal, the particular statutory framework pertaining to challenges to the validity of an election under the ALR Act suggests that s 20(2) of the Court Act cannot be relied on to found jurisdiction in this matter for the NSWALC cross-claim.

Does s 16(1A) of the Court Act apply?

85 The NSWALC also argued that, in the alternative, the matter can be dealt with under s 16(1A) of the Court Act. The Applicant argued that s 16(1A) could not apply, relying on Stables Perisher Pty Ltd to argue that the Court does not have implied incidental power as it is a court of limited jurisdiction. Section 16(1A) was introduced in 1993 (by the Local Government (Consequential Provisions) Act 1993), after the decision of the Court of Appeal in Stables Perisher Pty Ltd (1990). The broad scope of s 16(1A) was confirmed by Stein J (Hodgson JA concurring) in Scharer (2001), as identified in the NSWALC arguments. The broad scope of s 16(1A) has been recognised by the Court of Appeal (and several decisions of this Court) in quite different contexts to the ALR Act. In Newcastle City Council v Caverstock Group Pty Ltd and Anor (2008) 163 LGERA 83 Spigelman CJ referred in obiter to the possible application of s 16(1A) to found jurisdiction on the issue of whether a person is entitled to a refund of payment made under a condition of consent. In Arnold v Minister Administering the Water Management Act 2000 (2008) 163 LGERA 429 Spigelman CJ held (Allsop P and Handley AJA agreeing) that s 16(1A) gave the Court federal jurisdiction on matters falling within the Court’s s 16 jurisdiction. In the context of judicial review proceedings under the Water Management Act 2000 the constitutional validity of Commonwealth Acts concerning the making of a water-sharing plan could therefore be considered by this Court.

86 The issues raised in the cross-claim are ancillary to the Applicant’s claim seeking a declaration of a right under the ALR Act. Section 16(1A) does theoretically apply to found the Court’s jurisdiction to determine this issue. The further issue to be determined is whether the Court can consider the validity of the Applicant’s election under s 16(1A) of the Court Act when it is not sitting as a court of disputed returns under s 125 of the ALR Act. Another way of stating this issue is whether there is an implied repeal or limitation on the Court’s jurisdiction under s 16(1A) in light of s 125 of the ALR Act. That issue does not appear to have arisen in any case to which I have been referred.

87 The NSWALC submitted that an implied repeal of a court’s jurisdiction based on the High Court decision in Shergold (2002) should not be lightly accepted in the absence of express repeal. In Shergold access was sought to documents under freedom of information (FOI) legislation. In response, a certificate was issued by the relevant government authority denying access to the documents on public interest grounds. There was a right to challenge FOI decisions in the Administrative Appeals Tribunal (AAT) but in respect of certificates the AAT has relatively limited powers. Instead judicial review of the decision to issue the certificate was sought in the Federal Court. The question arose of whether the jurisdiction of the Federal Court to determine the challenge was impliedly repealed by the grant of jurisdiction conferred on the AAT under the relevant legislation. The unanimous judgment of the High Court found there was no evidence of a parliamentary intention to limit the Federal Court’s jurisdiction and no implied repeal was established. The earlier decision of the High Court in Owners of ‘Shin Kobe Maru’ (1994) confirms that express repeal should not be accepted lightly.

88 This matter is finally balanced given the importance of the court of disputed return jurisdiction, which I have referred to above in the context of determining whether jurisdiction exists under s 20 of the Court Act. Section 16(1A) is broadly drafted to enable the Court to resolve the issues before it and has wide scope, as confirmed by the Court of Appeal in at least two cases, albeit in quite different circumstances to this matter. As s 16(1A) was introduced in 1993 after the court of disputed returns provisions in the ALR Act it is not accurate to consider the issue as one of implied repeal, rather the question is whether there is an implied limitation on the jurisdiction conferred by s 16(1A). In all the circumstances I do not consider there should be any implied limitation on the Court’s jurisdiction in s 16(1A) by s 125 of the ALR Act (and predecessor sections which have always been in the ALR Act).

234 The Registrar relied on Ex parte Miah in his submissions where Gaudron J held that when information other than from an applicant is considered by a decision-maker whether that information should be supplied to an applicant depends on the circumstances. This situation does not arise on the facts. The Registrar states that he relied only on the material supplied by the Applicant in making his determination and there is no material to contradict that. That he had also received information from the NSWALC and the Maclean Local Court did not have to be disclosed as he did not rely on it in order to satisfy procedural fairness requirements.

235 I agree with the Registrar’s submissions that the whole of the interactions between him, the Applicant and her legal representatives need to be considered to determine if there was a denial of procedural fairness, as outlined above in par 225. The Registrar asked for the Applicant’s permission to obtain her driving record which was ultimately not granted. He made his own inquiries and obtained material known to her given that it was her driving record. The Applicant has not sought to establish that the 2003 conviction was not a second or subsequent offence in these proceedings. The submission of her counsel in March 2008 concerning the 2003 driving conviction was apparently incorrect in asserting that the maximum penalty was disqualification from driving for 18 months.

236 When the lengthy communications between the parties and the reasons provided are read as a whole I agree with the Registrar’s submission that it is not demonstrated by the Applicant that this issue was material to his determination under s 132(2). Rather the gravamen of the reasons deals with the offence itself, not that it was a second or subsequent offence. On one view the Registrar was recording accurately in his reasons dated 7 July 2008 the position of the Applicant in light of the fact that she received a two year suspension from driving for the 2003 conviction.

237 In relation to the Applicant’s submission that the adverse material should have been disclosed, the Applicant submitted that the Registrar had a duty to investigate such matters relying on Hardiman. Hardiman concerned the carrying out of investigations by the Australian Broadcasting Tribunal (ABT) which had specific investigatory powers under its operating Act. It was held in a joint judgment of Gibbs, Stephen, Mason, Aicken and Wilson JJ that the tribunal had a duty to thoroughly investigate matters relevant to its inquiry and had failed to discharge that duty because it precluded itself from discharging the duty due to rulings made. That case considered a quite different statutory framework to that under the ALR Act which included specific powers conferred on the tribunal in question which the Registrar does not have. The Registrar’s functions in s 132(2) of the ALR are not analogous to those of the ABT under the Broadcasting and Television Act 1942 (Cth). I do not agree with the Applicant’s submissions on this point.

238 A relevant decision referred to by the Registrar to consider in these circumstances is Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. The Federal Court (Northrop, Miles and French JJ) at [134] held in the context of the Migration Act 1958 that while a decision-maker is required to advise of any adverse findings arrived at which would not be open on the known material he or she is not obliged to expose all mental processes or views before making a decision, cited with approval by the Federal Court in MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94.

239 The Applicant was legally represented when her submissions were made and can be presumed to be aware of her driving record as part of the known material. It is not a legal requirement that in order to accord procedural fairness the Registrar had to alert the Applicant to factors which can be presumed to be within her knowledge before making the determination. The Applicant’s counsel submitted that it was up to the Registrar to alert her to those matters he considered were relevant and not up to the Applicant to alert him of the fact it was a second and subsequent offence. The information on which the Registrar determined this aspect of the matter was supplied by the Applicant. In these circumstances there was no requirement of procedural fairness to advise her of the matter alleged before making his determination.

(b) NSWALC’s complaint

240 The Registrar told the Applicant of the complaint by the NSWALC in his letter of 29 January 2008. That letter referred to the attachments to the complaint being the police fact sheets and the newspaper article which both referred to the Applicant’s conviction for a driving offence in the Maclean Local Court on 15 January 2008. The Registrar disclosed in the letter that he had received a complaint and its general nature to the Applicant. One of the Registrar’s functions under s 165(h) of the ALR Act is to investigate complaints. There was no statutory requirement under the Act or Regulation as to how the Registrar should investigate complaints, or requiring him to disclose the complaint to the Applicant. He did advise the Applicant of the complaint being received and its substance.

241 There was no specific obligation on him to further advise the Applicant of his responses to the NSWALC. When the correspondence between the Applicant and the Registrar, referred to in the chronology above in par 161, is considered in full it is clear that he kept her informed through her legal representative of what steps he was taking in relation to the investigation he was undertaking in relation to the breach of the Act. It is also relevant to note that the Applicant did not request a copy of the complaint despite being legally represented in her dealings with the Registrar.

242 There was no failure to accord procedural fairness to the Applicant in the circumstances and the challenge on this ground fails.

(ii) apprehension of bias

243 Ebner is widely recognised as providing a relevant test for whether an apprehension of bias arises for those exercising statutory functions. The facts in Ebner concerned whether there was an apprehension of bias resulting from a judge holding shares in a bank which had a financial interest in the outcome of the litigation and/or was a party to the litigation. The test propounded in Ebner in the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issue before them. As the decision recognises (at 343), that principle has been extended to many other kinds of decision making and decision makers. The application of the principle is described in two steps at 345:

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

244 The application of the test in Ebner was considered in the Court of Appeal in McGovern v Ku-ring-gai Council (2008) 161 LGERA 170 in the context of a multi-member elected decision-making body, a local council. The test for apprehended bias applies to statutory decision-makers and is affected by the functions they are required to perform and the identity and nature of the decision-maker who is obliged to perform those functions. This requires a context specific approach, usually as part of a process of statutory interpretation and the judicial paradigm is not universally applicable (per Spigelman CJ at [2], [7], [10]). Similar findings were made by Basten JA at [71] and [75] referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Hayne J at [179]-[187] as an example of how different standards to those applying to judges will operate in relation to ministerial decision-making in that case, because of the need to take into account the particular role and functions of the decision-maker.

245 The cases referred to above were concerned largely with apprehension of bias based on whether there was likely to be an apprehension that the decision-maker had prejudged the matter which had to be determined. The circumstances raised in these proceedings as giving rise to an apprehension of bias are quite different from those cases. As identified by Basten JA in McGovern at [151] (with whom Spigelman CJ and Campbell JA concurred on this point), it is necessary to consider the particular statutory framework in which the decision-maker is operating in determining the considerations relevant to an allegation of apprehension of bias.

246 The Registrar’s functions in s 165 relate, inter alia, to the registration of land claims, the maintenance of the Register of Aboriginal Land Claims and the Register of Aboriginal Owners and the making of recommendations to the Minister in relation to changes to area boundaries of local aboriginal land councils, inter alia. Under s 165(h) the Registrar is to investigate complaints regarding, inter alia, the non-disclosure of pecuniary interests, misbehaviour by councillors and Board members, inter alia, and breaches of the Act and the Regulation. Under s 165(h1) if the Minister so requests the Registrar is to provide information about the operations of an aboriginal land council. Other functions can be statutorily conferred on the Registrar under the Act, as has occurred in relation to s 132(2). Under s 165 there is no limitation in terms of the Registrar carrying out any of those functions simultaneously. The Registrar is empowered under s 235 to issue compliance directions at the request of any person or body to an aboriginal land council or an officer of a land council or a councillor requiring compliance with the Act or Regulation made under the Act. He cannot issue a direction if the matter constitutes an offence under the Act or the determination of the matter is provided for in another section of the Act (s 235(3)). There are no specific provisions in the Act or the Regulation for how the Registrar should carry out his functions under s 165, including the handling of complaints.

247 The Applicant argued that because the Registrar fulfilled other functions (par 221 identifies four, investigation of breaches of the Act, considering and advising NSWALC on possible breaches of the ALR Act and its complaint, potential prosecution of the Applicant in the ADT and briefing the Minister) at the same time as making a determination under s 132(2) a fair minded observer might reasonably apprehend that the Registrar might not bring an impartial mind to the exercise of his discretion. Additionally the investigation into whether the Applicant should be disqualified was not within his defined functions under the ALR Act. It was not one of his functions to determine if the Applicant should be disqualified as a councillor and pursued proceedings in the ADT. As a result of carrying out this activity allegedly as part of his functions he was interested in the determination he was required to make in relation to s 132(2). I infer the Applicant is seeking to argue that he might be perceived by a fair-minded observer as not acting dispassionately in the determination he made under s 132(2), so that an apprehension of bias arises.

248 Consistently with s 165(h) the Registrar has the function of investigating complaints about breaches of the Act and the Applicant’s situation was drawn to his attention in the context of a complaint by the NSWALC about a possible breach of the Act. The driving offences first drawn to his attention by the NSWALC did not fall within s 132(1)(c). He commenced an investigation into the matter raised by the NSWALC of whether there was a breach by the Applicant of s 132 of the Act, the relevant code of conduct or misbehaviour provisions. He told the NSWALC by letter dated 29 January 2008 that he was continuing to investigate the matters raised concerning the Applicant’s driving offence convictions. He wrote to the Applicant on 29 January 2008 advising her of the complaint. There was correspondence and telephone calls with the Applicant’s legal adviser. In the letter dated 15 February 2008 from the Registrar to the Applicant he advised of his investigation into whether she was disqualified from holding office under s 132(1)(c) of the Act. He advised that he considered he had to determine whether there were convictions relevant to s 132(1)(c) and sought a statutory declaration about certain matters. If there were such a conviction he also asked if the Applicant wished him to consider exercising his discretion to ignore the convictions pursuant to s 132(2) of the Act and to provide him with any matters she wished to be taken into account in considering that matter.

249 The Applicant’s response was in the form of written submissions from her counsel which advised there was one offence of which she was convicted which fell within s 132(1) of the Act. This appears to be the first time the Registrar became aware of the 2003 driving conviction. The Applicant requested the Registrar through her counsel’s submissions dated 10 March 2008 to consider whether the 2003 driving conviction should be ignored for the purposes of s 132(1) of the Act. Submissions were made concerning the application of s 132 in similar terms to those made by the Applicant’s counsel in these proceedings concerning the broad range of offences falling within s 132(1)(c), and the fact that many of these have no relationship to the fitness or ability of a councillor to carry out their functions. Submissions on the time since the offence and the triviality of the offence were also made.

250 In his response dated 25 March 2008 the Registrar stated that the submissions did not deal with the circumstance surrounding the effluxion of time since the offence was committed. The Registrar at that stage stated that without further information the time that had elapsed since the Applicant nominated as a candidate was not capable of being taken into account in the Applicant’s favour. She was invited to make further submissions in relation the circumstances of her non-disclosure of the offence when she nominated for election as a councillor which he could take into account in relation to the time that had elapsed. Supplementary submissions were received from the Applicant’s legal representative. He disputed that any of the additional information sought was relevant to the Registrar’s consideration of matters under s 132(2) but nevertheless responded as he was instructed to do. The letter of 19 May 2008 from the Registrar provided his determination that he had decided not to ignore the offence in accordance with s 132(2) of the Act. It also stated that the Applicant was disqualified from holding office as a councillor on the NSWALC from the time of appointment. He stated that the appointment was null and void and requested her resignation. If that was not forthcoming he stated that he would apply to the ADT under s 135(1) to seek an order that her position be made vacant. In a later letter dated 18 June 2008 the Registrar advised that no application to the ADT was necessary as she was automatically disqualified. His further expanded reasons for the determination under s 132(2) were provided by letter dated 7 July 2008. He also briefed the office of the Minister for Aboriginal Affairs on 17 June 2008.

251 Given that the complaint from the NSWALC raised issues concerning s 132 of the ALR Act, which deals with grounds for disqualification of councillors, the Registrar was investigating a matter that came within the scope of his functions under s 165(h), contrary to the Applicant’s submission. The circumstances giving rise to a potential breach of the Act, the subject of his investigation, concerned whether there was a conviction to which s 132(1)(c) applied. Because of the timing of events this also involved considering the circumstances of the Applicant’s election and the swearing of the incorrect statutory declaration by her in breach of cl 47(1)(c1) of the Regulation, there being no rectification of that failure under cl 47(4) before the close of nominations. His investigation of the breach of the Act was within the functions the Act required of him under s 165(h).

252 The Registrar’s investigatory functions under s 165(h) are not limited in terms to those matters in which he can issue a compliance direction under s 235, contrary to the Applicant’s submissions (par 223). There is no principle of statutory construction which suggests his functions under s 165(h) should be limited in light of s 235(1). This view is also supported by s 235(3) which states the circumstances when a direction is not to be issued. His investigative powers under s 165(h) include consideration of breaches of the Act. Under s 235(3)(a) he is not able to issue a compliance direction if a matter constitutes a breach of the Act. Further, under s 165(f) one of his functions is issuing compliance directions to specified persons. That function is separate from the investigative function under s 165(h). The Applicant’s submission that the only role the Registrar had was to exercise his discretion in determining the matter under s 132(2) ignores the wide ranging function the Registrar has under s 165(h) of the Act. Further, there is nothing in the Act suggesting that the Registrar should not also brief the Minister when he considers it appropriate. He must brief the Minister if he receives a request for information from him or her (s 165(h1))

253 The Registrar’s submissions at par 228-230 concerning the exercise of more than one of his functions at the same time are correct. Given that during the investigation process the Applicant requested him to exercise his discretion under s 132(2), it is difficult to see how, as a practical matter, he could have separated more clearly the various functions he was performing. The fact that he carried out more than one function does not alone satisfy the requirement the Applicant must meet in identifying the matters relevant to the two part test identified in Ebner.

254 The Applicant argued that the Registrar was relying on a defence of necessity in referring to the need to undertake more than one function at a time and submitted this meant by implication that he admitted there was an apprehension of bias (par 218). I do not find below that any apprehension of bias existed. The statute clearly provides for the Registrar to undertake numerous functions and his investigation function is broad. Whether or not it is necessary that he exercise multiple functions, given the terms of the Act there is no reason to confine his functions under s 165 or infer that these should not be carried out at the same time.

255 It is unclear on the Applicant’s case how the two steps identified by Gleeson CJ, McHugh, Gummow and Hayne JJ at [8] in Ebner are satisfied. The first step requires the identification of what interest would lead the Registrar to decide the matter other than on its merits. The Applicant does not clearly identify the nature of the interest which the Registrar has which might cause a fair minded observer to conclude that he might not make the determination under s 132(2) impartially. The inference from the Applicant’s case seems to be that he had an interest in seeking the disqualification of the Applicant or was unreasonably influenced by her conduct in seeking election while disqualified, in relation to his determination under s 132(2). I have already determined that the Applicant’s challenge to the determination on the basis of failing to take into account relevant matters, taking into account irrelevant matters and unreasonableness, ought to fail. There is no other issue raised in the Applicant’s submissions which the Registrar is said to have considered as the basis for the determination which suggests he has done anything other than consider the determination as he is required to do.

256 The second part of the test requires that there be a logical connection between the interest alleged and the possibility of deviation from deciding the case on its merits. Given that there is no interest articulated, this second step cannot be satisfied. In terms of the argument mounted, the Applicant submitted that there was an apprehension of bias because the Registrar considered he should apply to the ADT for a declaration that the Applicant’s position was vacant, and that was not part of his functions. I note that he subsequently changed his mind that such an application was necessary because he considered the Applicant’s position was automatically vacant. I surmise that the Applicant seeks to argue that because the Registrar also considered he had to deal with whether the Applicant’s position as a councillor was vacant due to her disqualification under the Act, this gave rise to an “interest” in the outcome so that his determination of whether to ignore the driving conviction under s 132(2) might not be seen as having been conducted impartially from the perspective of a fair minded observer.

257 That there were in the Registrar’s view legal consequences for the Applicant as a result of his determination not to exercise his discretion to ignore the 2003 driving conviction, whether or not that view may be correct, does not identify a matter that he took into account as part of his determination in relation to s 132(2). As submitted by the Registrar (par 230) an application to the ADT under s 135 of the Act is a separate matter from the issue he had to consider under s 132(2).

258 While the Registrar submitted there would have to be some evidence that the Registrar appeared to be predisposed to a particular outcome the “might/might” test of apprehension of bias does not require that level of proof to be established. In McGovern at first instance I held that apprehension of bias in the case of councillors on a elected council had to be firmly established and that the test was whether a fair minded observer would consider the decision-maker would not act impartially. This was criticised as setting too high a threshold by Spigelman CJ at [3] and Campbell JA at [236]. Basten JA did not so hold at [115]. Applying the lower threshold approved by the majority in McGovern, looking at the circumstances before the Registrar and aware of his functions under the Act, a fair minded lay observer would not reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of his functions under s 132(2). There is no apprehension of bias in these circumstances and the Applicant’s challenge on this ground fails.

259 The Applicant is unsuccessful on the failure to accord procedural fairness and the apprehension of bias ground. Her challenge to the Registrar’s determination not to ignore her 2003 driving conviction under s 132(2) is unsuccessful and that determination stands.

Concluding remarks

260 The issues raised by the circumstances of this case are novel in the context of the ALR Act. I have determined that the Applicant was validly elected as a councillor by the returning officer (par 130) so that the issue arises of whether the orders she seeks in prayers 1 to 3 of her Class 4 application ought be made. I have also held that s 132 and 133(e) of the ALR Act apply to her present circumstances (par 135) so that the possibility of the declaration of vacancy of her position arises. I held in relation to issue 2 of the cross-claim (par 151) that the Applicant was not immediately disqualified on taking office. Section 22 of the Court Act states that the Court must grant all remedies to which the parties appear to be entitled so that as far as possible all matters in controversy between the parties can be completely and finally determined in order to avoid a multiplicity of proceedings.

261 I have determined the judicial review proceedings of the Registrar’s determination against the Applicant. The issues arise of whether I have jurisdiction to consider whether the Applicant’s position as councillor should be declared vacant and whether I should exercise that jurisdiction. This was not a matter that was fully explored in argument and requires further consideration by the parties. An added complication may be that the period of disqualification for the 2003 driving conviction of five years under s 132(1)(c) expired on 11 March 2008. I will ask the parties if they wish to make further brief submissions in this matter about the appropriate orders that should be made and whether further issues arise before finalising any orders. The issue of costs also needs to be considered by the parties.

14/05/2009 - text deleted - Paragraph(s) 8

CITATION:	Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors [2009] NSWLEC 58 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT/FIRST CROSS-DEFENDANT Patricia Helen Laurie FIRST RESPONDENT/CROSS-CLAIMANT New South Wales Aboriginal Land Council SECOND RESPONDENT Registrar, Aboriginal Land Rights Act 1983 SECOND CROSS-DEFENDANT Brian Decelis THIRD CROSS-DEFENDANT Electoral Commissioner for New South Wales
FILE NUMBER(S):	40616 of 2008
CORAM:	Pain J
KEY ISSUES:	INJUNCTIONS AND DECLARATIONS :- Applicant elected as councillor of NSWALC - declaration sought to allow Applicant to continue in role - cross-claim seeking declaration that nomination and election of councillor void Jurisdiction :- jurisdiction of Court to hear cross-claim as to whether Applicant validly elected - whether validity of election can only be raised when court sitting as a court of disputed returns - distinction between election process and qualification of candidate to hold office/vacancy of office - whether declarations sought by cross-claim ancillary to Applicant's claim for relief Construction and Interpretation:- was Applicant's election under Div 3 void because disqualified from holding office under Div 4 of Aboriginal Land Rights Act 1983- was Applicant's nomination for election validly accepted by the returning officer - should incorrect statutory declaration of the Applicant have been rejected - was Applicant immediately disqualified after her election Judicial Review :- whether decision of Registrar not to ignore disqualifying conviction invalid - whether failure to give real and genuine consideration to relevant matters - whether irrelevant matters taken into account - whether decision manifestly unreasonable - whether Applicant denied procedural fairness by Registrar failing to disclose complaint and adverse material obtained - whether apprehension of bias because of way Registrar considered matters
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 s 3, 63, 66, 106, 120, 121, 123, 124, 125, 128, 132, 133, 135, 136, 137, 164, 165, 226, 235 Aboriginal Land Rights Amendment Act 2001 Aboriginal Land Rights Amendment Act 2006 Aboriginal Land Rights Regulation 1996 (repealed) Aboriginal Land Rights Regulation 2002 cl 47, 48, 80, 83 Broadcasting and Television Act 1942 (Cth) Commonwealth Electoral Act 1902 (Cth) s 192 (repealed) Commonwealth Electoral Act 1918 (Cth) s 162, 163, 360, 376 Commonwealth of Australia Constitution Act (1900) s 47 Constitution Amendment Act 1958 (Vic) s 73, 300 Crimes (Sentencing Procedure) Act 1999 s 17 Funeral Funds Act 1979 s 11 Interpretation Act 1987 s 33, 34, 35 Land and Environment Court Act 1979 s 16, 20 Local Government Act 1993 s 274, 275, 276, 329 Local Government (Consequential Provisions) Act 1993 Migration Act 1958 (Cth) Parliamentary Electorates and Elections Act 1912 s 161, 175B Road Transport (Driver Licensing) Act 1998 s 25A(1)(a) Water Management Act 2000
CASES CITED:	Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494 Allen Allen & Hemsley v Australian Securities Commission (1992) 27 ALD 296 Arnold v Minister Administering the Water Management Act 2000 (2008) 163 LGERA 429 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Blundell v Vardon (1907) 4 CLR 1463 at 1513 Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 Burnum Burnum v Gandangara Local Aboriginal Land Council (1997) 93 LGERA 148 Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 48 FCR 280 Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576 Commonwealth v Baume (1905) 2 CLR 405 Connolly v Electoral Commissioner of New South Wales (1992) 76 LGRA 104 Cutelli v Wyong Shire Council [2007] NSWLEC 137 Darkingjung Pty Ltd v Darkingjung Aboriginal Land Council [2006] NSWSC 42 Dodd v Gandangara Local Aboriginal Land Council (1999) 106 LGERA 189 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 617 Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274 IW v City of Perth (1997) 191 CLR 1 In Re Wood (1988) 167 CLR 145 Kioa v West (1985) 159 CLR 550 Kruger v Commonwealth (1997) 190 CLR 1 Lane v Atkin (1922) 30 CLR 437 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 Martin v Nicholson (1850) 1 Legge 618 McDonald v Keats [1981] 2 NSWLR 268 McGovern v Ku-ring-Gai Council (2008) 161 LGERA 170 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 Newcastle City Council v Caverstock Group Pty Ltd and Anor (2008) 163 LGERA 83 Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404 Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 Re Walsh [1971] VR 33 Save Our Street Inc v Settree and Another (2006) 149 LGERA 30 Scharer v State of New South Wales (2001) 53 NSWLR 299 Shergold v Tanner (2002) 209 CLR 126 Teoh v Hunters Hill Council [2008] NSWLEC 263 Yanner v Minister for Aboriginal and Torres Strait Islander Affairs (2001) 108 FCR 543
TEXTS CITED:	Aronson M et al, Judicial Review of Administrative Action, 4th Edition, Lawbook Co, Sydney 2009 Pearce D C and Geddes R S, Statutory Interpretation in Australia, 6th edition, LexisNexis Australia 2006
DATES OF HEARING:	25 August 2008 26 August 2008 8 December 2008 9 December 2008
DATE OF JUDGMENT:	4 May 2009
LEGAL REPRESENTATIVES:	APPLICANT/FIRST CROSS-DEFENDANT Mr S Docker SOLICITORS Conroy Stewart Spagnolo FIRST RESPONDENT/FIRST CROSS-CLAIMANT Mr J Kirk SOLICITORS Chalk and Fitzgerald Lawyers SECOND RESPONDENT Mr A McAvoy INSTRUCTED BY Registrar, Aboriginal Land Rights Act 1983 SECOND AND THIRD CROSS-DEFENDANTS Ms C Spruce SOLCITORS Crown Solicitor

14 September 2002	The Applicant drove whilst disqualified and was subsequently issued a summons out of Maclean Local Court
11 March 2003	The Applicant is convicted in Maclean Local Court of driving whilst disqualified under s 25A(1)(a) Road Transport (Driver Licensing) Act 1998 (the driving offence) and is disqualified from driving for two years until 10 March 2005
Late 2006/ early 2007	The Minister for Aboriginal Affairs determined, in consultation with NSWALC, the date upon which elections for the offices of councillor for the NSWALC Regions would be held pursuant to s 122 of the Act. The Second Cross-Defendant, an employee of the Electoral Commission, was appointed the returning officer for the election: s 121(3) of the ALR Act.
February 2007	Public notice given by the Second cross-defendant that the elections for the offices of councillors of NSWALC would be held on 19 May 2007
7 February 2007	The ALR Amendment Act 2006 commences, s 132 takes effect. Because of the driving offence the NSWALC alleges that the Applicant was disqualified from holding the office of councillor of NSWALC by force of s 132(1)(c) of the ALR Act, until 11 March 2008
26 March 2007	Second cross-defendant calls for nominations for candidates for the elections for the offices of councillor of NSWALC, with nominations closing at noon on 23 April 2007
20 April 2007	The Applicant nominates as a candidate in the election to be held on 19 May 2007 for the office of councillor of the North Coast Region of NSWALC including swearing a statutory declaration that incorrectly states that she is not disqualified from holding office under s 132 of the Act
23 April 2007	The Applicant is nominated as a candidate in the election after acceptance of the nomination by the returning officer
19 May 2007	The election is held
22 May 2007	The returning officer returning officer declares the Applicant elected as councillor for the North Coast Region of NSWALC
30 May 2007	The Applicant takes office as a councillor of NSWALC upon the end of the period of administration of the Council: cl 99A, ALR Regulation
17 and 25 January 2008	NSWALC complains to Registrar that the Applicant is in breach of s 132(1)(c). The Registrar commences an investigation.