Rhonda Hazel Connolly v E I Dickson [1992] NSWLEC 53 (17 July 1992) - [1992] NSWLEC 53

Land and Environment Court

of New South Wales

CITATION: RHONDA HAZEL CONNOLLY v. E I DICKSON [1992] NSWLEC 53 (17 July 1992) [1992] NSWLEC 2

PARTIES: RHONDA HAZEL CONNOLLY v. E I DICKSON

FILE NUMBER(S): 40079 of 1992

CORAM: Pearlman J

KEY ISSUES: :-

LEGISLATION CITED: Aboriginal Land Rights Act 1983
Interpretation Act, 1987
Commonwealth Electoral Act 1918
Commonwealth of Australia Constitution Act

CASES CITED: McEldowney v Forde (1971) A.C. 632 ;
In Re Wood (1988) 167 CLR 145

DATES OF HEARING:

DATE OF JUDGMENT:
07/17/1992

LEGAL REPRESENTATIVES:

JUDGMENT:

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:

Who may vote

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Rhonda Hazel Connolly v E I Dickson [1992] Nswlec 53 (17 July 1992) [1992] NSWLEC 2
Case: [1992] NSWLEC 53
Decision Date: 07/17/1992

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Rhonda Hazel Connolly and Burnum Burnum contested the legitimacy of Burnum Burnum's election as a councillor for the South Coast region on the New South Wales Aboriginal Land Council. The applicants sought to have the election declared null and void and to prevent the Electoral Commissioner from declaring Burnum Burnum elected, with Rhonda Hazel Connolly additionally requesting a new election. Burnum Burnum filed a cross-application seeking a declaration of his election or, alternatively, a new election. The core legal issues centred on the qualifications of Burnum Burnum to stand for election and, if he was unqualified, how the resulting vacancy should be filled.

The court examined the statutory framework governing the election of councillors, specifically sections 26 and 27 of the Aboriginal Land Rights Act 1983, which stipulated that only members of a Local Aboriginal Land Council within the area were eligible to vote and stand for election. The court found that Burnum Burnum's application for membership was lodged after the closing date and was not accepted by a meeting of the Jerringah Local Aboriginal Land Council, as required by the Aboriginal Land Rights Regulation 1983. The court also considered whether the Regulation's provisions allowing the chairperson to list an applicant on the roll if the Local Aboriginal Land Council failed to hold a meeting were valid, concluding they were inconsistent with the Act and thus invalid. Consequently, Burnum Burnum's claim to qualification was based on an invalid provision, rendering his election void and creating a vacancy.

The court rejected the applicants' argument for a re-count of votes, distinguishing it from the High Court's decision in In Re Wood, which dealt with a multiple member constituency. Instead, the court held that a new election was necessary to ascertain the true intent of the voters in a preferential voting system for a single member constituency. The court also briefly addressed Burnum Burnum's pre-existing bankruptcy, noting that while it did not disqualify him from standing for election, it would necessitate a re-election if it occurred post-election.

In conclusion, the court found Burnum Burnum unqualified to stand for election, declared his election void, and ordered a new election for the position of councillor for the South Coast region on the New South Wales Aboriginal Land Council. The court restrained the Electoral Commissioner from declaring Burnum Burnum elected and ordered the conduct of a new election. The cross-applications were dismissed, and the question of costs was reserved.

Orders