Rhonda Hazel Connolly v E I Dickson

[1992] NSWLEC 4

Land and Environment Court

of New South Wales

CITATION:

RHONDA HAZEL CONNOLLY v. E I DICKSON [1992] NSWLEC 4

PARTIES:

FIRST RESPONDANT
E.I Dickson

SECOND RESPONDANT
Burnam Burnam

THIRD RESPONDANT
New South Wales Aboriginal Land Council

FILE NUMBER(S):

40079/40080 of 1992

CORAM:

Pearlman J

KEY ISSUES:

:-

LEGISLATION CITED:

The Aboriginal Land Rights Act 1983
Interpretation Act, 1987

CASES CITED:

McEldowney v Forde (1971

DATES OF HEARING:

17th July1992

DATE OF JUDGMENT:

07/17/1992

LEGAL REPRESENTATIVES:

JUDGMENT:

-

INTRODUCTION:

On 11 April 1992, elections were held for the position of councillor representing the South Coast region on the New South Wales Aboriginal Land Council. The candidate who gained the most number of votes for the South Coast region was Burnum Burnum.

The election of Burnum Burnum is now challenged. In these proceedings, heard together, the applicants each seek similar orders. They ask that the Electoral Commissioner for New South Wales be restrained from declaring the election of Burnum Burnum, and that the election be declared by this Court to be null and void. One applicant, Mr Brandy, seeks a re-count of the votes cast, while the other applicant, Mrs Connolly, seeks the convening of a new election.

Burnum Burnum filed a cross application in each case, seeking a declaration that he be declared elected, or, in the alternative, that a further election be ordered to be convened.

ABORIGINAL LAND COUNCILS

Aboriginal Land Councils are creatures of statute, the Aboriginal Land Rights Act 1983 (the "Act"). A hierarchical structure is constituted by the Act;

i. Local Aboriginal Land Councils

By s 5 of the Act, the Minister may constitute an area as a Local Aboriginal Land Council area. For each area, there shall be a Local Aboriginal Land Council (s 6(1)). All adult Aborigines who are listed in the Local Aboriginal Land Council roll for the particular area shall be members of the Local Aboriginal Land Council for that area (s 6(3)).

ii. Regional Aboriginal Land Councils

By s 14 of the Act, the Minister may constitute an area as a Regional Aboriginal Land Council area. For each area, there shall be a Regional Aboriginal Land Council (s 15(1)). The members of each Local Aboriginal Land Council which is situated within the area of the particular Regional Aboriginal Land Council shall elect members to represent that Local Aboriginal Land Council on the Regional Aboriginal Land Council (s 11).

iii. New South Wales Aboriginal Land Council

The Act sets up a New South Wales Aboriginal Land Council to consist of full time Aboriginal councillors equal to the number of Regional Aboriginal Land Council areas (s 22). Each councillor on the New South Wales Aboriginal Land Council is to be elected to represent a Regional Aboriginal Land Council (s 22(3)).

THE STATUTORY RULES GOVERNING ELECTION OF COUNCILLORS TO THE NEW SOUTH WALES ABORIGINAL LAND COUNCIL

The foundation for election is contained in ss 26 and 27 of the Act:

i. Who may vote

S 26 provides as follows:

"26. A person is entitled to vote at an election for a councillor to represent a Regional Aboriginal Land Council area if the person is a member of a Local Aboriginal Land Council within the area."

ii. Who may stand for election

S 27 of the Act provides:

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

The question then is - who is a member of a Local Aboriginal Land Council?

S 6(3) of the Act provides:

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

S 4 of the Act defines "adult Aboriginal" as meaning an Aboriginal who has attained the age of 18 years, and "Aboriginal" as a person who:

a. is a member of the Aboriginal race of Australia;

b. identifies as an Aboriginal; and

c. is accepted by the Aboriginal community as an Aboriginal.

S 7 of the Act governs the making of the Local Aboriginal Land Council roll. The secretary of a Local Aboriginal Land Council shall prepare and maintain a roll (s 7(1)). S 7(2) provides:

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

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

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

Section 7(3) of the Act enables the making of regulations regarding the preparation and maintenance of Local Aboriginal Land Council rolls, the particulars to be recorded in them, the removal of those particulars, the lodging of objections against failure or refusal to list, or removal of a name, and reference of objections to this Court.

Part 4, Division 1 of the Aboriginal Land Rights Regulation 1983 (the "Regulation") contains regulations dealing with the calling of an election of councillors to the New South Wales Aboriginal Land Council.

When the Minister determines an election is to be held, notice of the election is to be given. Cl 21(4) of the Regulation provides as follows:

"21(4) The notice must state the following:

(a) that an election is to be held for a councillor to represent the area;

(b) that a person may only vote at the election if the person is a member of a Local Aboriginal Land Council within the area;

(c) that a person (if eligible) may be listed on the roll of a such a Council before the election if the person requests or applies to the Secretary of the Council in writing to be listed on the roll on or before a closing date specified in the notice;

(d) the places at which information is available concerning the procedure for being listed on such a roll;

(e) that the roll of a Local Aboriginal Land Council may be inspected at the office of the Council during normal office hours."

Cl 22 of the Regulation deals with the enrolment of Aboriginal persons not residing in the area. It provides as follows:

"22.(1) Each Local Aboriginal Land Council must hold a meeting after notice of an election is given under clause 21 to consider applications by adult Aboriginal persons who have an association with the Local Aboriginal Land Council area (but who do not reside within the area) to be listed on a roll for the area.

(2) The Council must hold the meeting referred to in subclause (1) within the period of 7 days immediately following the closing date specified in the notice of the election in accordance with clause 21(4)(c).

(3) A Local Aboriginal Land Council is not required to hold a meeting under this clause if there are no applications to be listed on the roll for the area to be considered.

(4) If a Local Aboriginal Land Council fails to hold a meeting to consider an application by a person to be listed on the roll as required by this clause, the Chairperson of the New South Wales Aboriginal Land Council must list the person on the roll of the Local Aboriginal Land Council for the purposes of the election of councillors of the New South Wales Aboriginal Land Council.

(5) Following the election, the Local Aboriginal Land Council must consider the application of any person who has been listed on the roll by the Chairperson of the New South Wales Aboriginal Land Council under subclause (4) but the determination of any such application by the Local Aboriginal Land Council does not invalidate or in any other way affect the result of the election.

(6) This clause and clause 21(4)(c) apply in relation to an election to which clause 21 applies despite Rule 10 of Schedule 3."

Sch 3 to the Regulation contains model rules for Local Aboriginal Land Councils (which apply to the Jerringah Local Aboriginal Land Council). Rule 10 of the model rules prescribes a time limit for lodging of applications based on

association, but its operation is expressly excluded, in the case of elections, by cl 22(6).

BACKGROUND

In February 1992, the Electoral Commissioner of New South Wales (one of the respondents in these applications) as returning officer gave notice of the election of members of the New South Wales Aboriginal Land Council for the South Coast Region. The notice (Exhibit "A") stated who could vote, and how to apply for membership (as required by cl 21(3) of the Regulation), and provided that applications for membership of a Local Aboriginal Land Council within the area "... must be made in writing to the Secretary of the Local Aboriginal Land Council not later than Noon, Wednesday, 12 February 1992, to be eligible to vote in these elections".

On 11 February 1992, Burnum Burnum attempted to lodge an application form with Mr Bryce, an employee of the New South Wales Aboriginal Land Council. Mr Bryce refused to accept the application and told Burnum Burnum that he should lodge it with the secretary of the Local Aboriginal Land Council.

Burnum Burnum subsequently lodged the application with Mrs Rhonda Connolly (the applicant in proceedings No. 40079 of 1992) at the Jerringah Local Aboriginal Land Council. There was some dispute about when this occurred. Burnum Burnum contends that he attended at the office of the Jerringah Local Aboriginal Land Council on 17 February 1992, but the evidence of Mrs Connolly, (supported by evidence from Mr Frank Connolly and Mr Gregory Connolly) was that this happened on 19 February 1992. I accept the weight of evidence for the second date, that is, 19 February 1992, but, in any event, nothing turns on the precise date, except, as Burnum Burnum concedes, that the application was lodged after the closing date of 12 February 1992.

Burnum Burnum's application (annexure "C" to the affidavit of Mrs Connolly sworn 16 April 1992) showed his address as being within the area of the Jerringah Local Aboriginal Land Council. He admits that this is not correct, and his application was treated by Mrs Connolly as being based on association with the area.

On or about 18 February 1992 (there is, again, some doubt as to the precise date, but nothing turns on it) Mrs Connolly certified and forwarded the roll of the Jerringah Local Aboriginal Land Council to the New South Wales Local Aboriginal Land Council. The name of Burnum Burnum was not included.

By an undated letter, (which was received by Mr Bryce during the week commencing 17 February 1992) Mrs Connolly wrote to the New South Wales Aboriginal Land Council, naming eleven persons (including Burnum Burnum) who had not been included on the Jerringah Local Aboriginal Land Council roll because, as the letter says, "they do not live in our boundary". The letter (annexure "B" to the affidavit of Mr Bryce sworn 30 April 1992) stated that the applications for these persons would be tabled at the annual general meeting of the Jerringah Local Aboriginal Land Council to be held on 23 March 1992.

Whether or not such a meeting was held is not relevant; what is clear is that there was no meeting of the Jerringah Aboriginal Land Council within the period of 7 days immediately following the closing date specified in the notice of election (that is, within 7 days after 12 February 1992) as required by cl 22(2) of the Regulation.

After the receipt of the letter referred to above from Mrs Connolly, Mr Bryce entered the name of Burnum Burnum, amongst others, on the roll for the South Coast Regional Aboriginal Land Council and that roll (Exhibit 2) (with Burnum Burnum's

name included) was certified by the interim chairperson of the New South Wales Aboriginal Land Council.

THE ISSUES

1. Was Burnum Burnum qualified to stand for election as a councillor of the New South Wales Aboriginal Land Council representing the South Coast region?

2. If not, is there a vacancy in the office of councillor representing the South Coast Region, and if there is, how is the vacancy to be filled?

Burnum Burnum delivered an application for membership of the Jerringah Local Aboriginal Land Council to the secretary of that Council after the closing date for applications, and his application was never accepted by a meeting of that Council.

On the face of it, that fact might be the end of the matter. In order to be eligible to stand for election, Burnum Burnum needed to be a member of the Jerringah Local Aboriginal Land Council (s 27). To be a member, Burnum Burnum needed to be listed on the Jerringah Local Aboriginal Land Council roll (s 6 (3)). To be so listed required (in the case of Burnum Burnum, whose enrolment depended on his association with the area) acceptance as a member at a meeting of the Jerringah Local Aboriginal Land Council s 7(2)(b). No such meeting was held.

But that is not the end of the matter. The Regulation purports to deal with enrolment of persons not residing in the area of the Local Aboriginal Land Council. Where an application is made which depends on association (and not on residence), the particular Local Aboriginal Land Council must hold a meeting to consider that application (cl 22(1) and cl 22(2)). If the Local Aboriginal Land Council fails to hold such a meeting, the chairperson of the New South Wales Aboriginal Land Council must list the person who has made application on the Local Aboriginal Land Council roll, for the purpose of election of councillors (cl 22(4)).

That, so Mr Geraghty for Burnum Burnum submits, is what happened. No meeting having been held, the chairperson placed Burnum Burnum's name on the roll for the Jerringah Local Aboriginal Land Council, and the consequence was that Burnum Burnum was both eligible to stand and eligible to vote. As I understand Mr Geraghty's argument, there is in the Act and Regulation an ordinary way for a non-resident to be a member of a Local Aboriginal Land Council. The ordinary way is provided in s 7 of the Act - application based on association and a meeting accepting membership. There is, however, an extraordinary way, arising under cl 22, to provide for the narrow time frame in which elections are held. For the purposes only of elections, the chairperson must enrol the applicant, if the requisite meeting of the Local Aboriginal Land Council is not held.

There are two opposing arguments.

The first is that, for cl 22(4) to operate, there must be an application. For there to be an application, it must be lodged within time. If out of time, there is no application for a person to be listed and the chairperson's power under cl 22(4) does not arise. There is, so this argument goes, no other way for subclauses (2) and (3) of cl 22 to operate. The requirement is to hold a meeting within 7 days of the closing date, but if there are no applications, the meeting need not be held. The existence of the applications to be considered at the meeting depends on the closing date.

I do not agree with this submission. In my opinion, so long as an application is lodged before the meeting at which it is to be considered, it is immaterial when it is lodged. There is nothing in cl 21 or 22 which prescribes a mandatory time for the lodgment of applications. The reference to the closing date in cl 21(4)(c) is a reference to the information which must appear on a notice calling an election - it does not have the effect of prescribing a time for the lodging of applications. There is a reference to the closing date in cl 22(2), but that is only to specify the time within which the Local Aboriginal Land Council must hold the requisite meeting. Moreover, the usual time prescribed for the lodging of applications (which appears in Rule 10 of Sch 3 to the Regulation) is expressly prohibited from operating in the case of elections of councillors (cl 22(6)).

The second opposing argument, put by Mr Robertson for the New South Wales Aboriginal Land Council, and adopted by both Mr Hale and Mr Bridge for the applicants, is, simply, that cls 22(4) and 22(5) are ultra vires. I agree with this submission.

The duty of the Court where a statutory rule is challenged as being beyond power is to consider the meaning and operation of the power given by the statute to make the statutory rule, and then to determine the meaning of the statutory rule and ascertain whether it exceeds the power conferred by the statute under which it is made: McEldowney v Forde (1971) A.C. 632 (see also s 32 Interpretation Act , 1987).

There are three possible sources of regulation-making power in the Act.

The first is s 7(3) which, as I have earlier said, provides a power to make regulations only with respect to matters pertaining to the rolls of Local Aboriginal Land Councils. Clearly, s 7(3) cannot be a source of power for cls 22(4) and (5) of the Regulation, because it relates only to the rolls, not the qualifications of persons to be listed on them.

There is a general regulation-making power in s 68 of the Act, but it is limited to the making of regulations "not inconsistent with this Act". In my opinion, the effect of cls 22(4) and (5), as I outline hereafter, is inconsistent with ss 6(3), 7(2)(b), 26 and 27 of the Act.

The only other source of power is s 25(1) which provides that regulations may be made for or with respect to the election of councillors of the New South Wales Aboriginal Land Council. But I agree with Mr Robertson, on behalf of the New South Wales Aboriginal Land Council, that this section does not authorise regulations diluting the requirements for membership of Local Aboriginal Land Councils or permitting a person not otherwise a member of a Local Aboriginal Land Council to be treated as a member for the purpose of voting or standing at an election.

The effect of cls 22(4) and (5) is to qualify a person to cast a vote and stand for election who would, absent such regulation, lack one element of qualification. That person would not have been accepted by a meeting of the relevant Local Aboriginal Land Council (s 7(2)(b)). He or she would not, absent that element, be listed on the Local Aboriginal Land Council roll and thereby be a member of that Local Aboriginal Land Council (s 6(3)). He or she would not, as a consequence, be entitled to vote or entitled to stand for election (ss 26 and 27).

It follows, in my opinion, that cls 22(4) and (5) exceed the power conferred by the Act, and are, accordingly, invalid provisions.

It also follows from my conclusion on this aspect of the case that, since Burnum Burnum's claim to qualification to stand for election as a councillor of the New South Wales Aboriginal Land Council was based on enrolment under cl 22(4), Burnum Burnum was not so qualified.

The consequence is that the election of Burnum Burnum was wholly ineffective. His election was void and there is therefore a vacancy for a councillor on the New South Wales Aboriginal Land Council to represent the South Coast region.

The question that remains, then, is how to fill the vacancy.

I was urged, by Mr Hale on behalf of Mr Brandy, that I should rely on In Re Wood (1988) 167 CLR 145 to declare that the vacancy should be filled by further counting or re-counting of the ballots cast in the election but excluding the votes and preferences for Burnum Burnum.

However, I do not think that In Re Wood applies to this case. In Re Wood dealt with the question of the qualification of a person to be elected as a member of the Senate of the Commonwealth Parliament. Having found that Mr Wood was unqualified, the High Court held that the vacancy thereby created should be filled by the further counting or re-counting of the ballot papers cast for candidates for election for the Senate. However, Mr Wood's election depended on a system of proportional preferential voting for a multiple member constituency. That is not the same in this case. What is present here is preferential voting for a single member constituency, namely, preferential voting for a single person to represent the South Coast region as a councillor on the New South Wales Aboriginal Land Council. In a case of a multiple member constituency, the valid choice of the electors can lawfully can be ascertained by re-counting and, so the High Court held, it was unnecessary to take a further poll.

Moreover, the High Court regarded the situation before it as though the unqualified candidate were deceased (at p 166), and referred to s 273(27) of the Commonwealth Electoral Act 1918 as an analogy to show that the name of the unqualified voter may simply be disregarded in a re-count. But as cl 59 of the Regulation provides, if a candidate for election to the New South Wales Aboriginal Land Council dies after the closing of nominations and before the polling date, the election is taken to have failed and the returning officer is to conduct a new election.

I do not think that, in a case of a preferential system for a single member constituency, the true intent of the voters could be determined by a re-count. I think the only way to ascertain the valid choice of the electors is to hold a new election.

In view of the conclusion I have reached, it is not necessary for me to deal with the consequence of Burnum Burnum's bankruptcy, but I feel obliged to express a view as to that consequence, in case it is relevant to a future election.

Cl 3(e) of Sch 5 to the Act provides that the office of a councillor on the New South Wales Aboriginal Land Council becomes vacant if the councillor "becomes bankrupt". Unlike s 44 of the Commonwealth of Australia Constitution Act , there is no express provision prohibiting a person from standing for election if he or she is bankrupt. In my opinion, the words are plain. A person may stand for office notwithstanding bankruptcy, but if bankruptcy occurs after office is gained, it must be vacated. The consequence is that the councillor must go to the electors for re-election. Cl 3(e) is almost identical with s 13A of the Constitution Act 1902 (of New South Wales) and consistent with the constitutional debates to which Mr Hale referred me. In my opinion, Burnum Burnum was not disqualified from standing for election, or being elected, as a councillor, solely on the grounds of his bankruptcy, which pre-dated the election.

CONCLUSION

For all these reasons, I have come to the conclusion that Burnum Burnum was not qualified to stand for election as a councillor of the New South Wales Aboriginal Land Council to represent the South Coast region, and that, as a consequence, there is a vacancy for that position. I make orders, therefore as follows:

In matter No. 40079 of 1992

1. That the first respondent and his servants and agents be restrained from declaring Burnum Burnum elected as a member of the New South Wales Aboriginal Land Council to represent the South Coast region.

2. That the second respondent be restrained from acting or purporting to act as a councillor of the New South Wales Aboriginal Land Council.

3. That the first respondent conduct an election for the position of councillor on the New South Wales Aboriginal Land Council for the South Coast region.

4. That the cross-application be dismissed.

In matter No. 40080 of 1992 I make the following orders:

1. That the first respondent and his servants and agents be restrained from declaring Burnum Burnum elected as a member of the New South Wales Aboriginal Land Council to represent the South Coast region.

2. That the third respondent be restrained from acting or purporting to act as a councillor of the New South Wales Aboriginal Land Council.

3. That the first respondent conduct an election for the position of councillor on the New South Wales Aboriginal Land Council for the South Coast region.

4. That the cross-application be dismissed.

In each application, I order that the exhibits may be returned.

I reserve the question of costs.