Richards v Paddy - [2016] SADC 11

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
RICHARDS v PADDY & ORS
[2016] SADC 11
Judgment of The Honourable Chief Justice Kourakis
5 February 2016
ABORIGINALS - ABORIGINAL REPRESENTATIVE BODIES - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEWABLE CONDUCT
Petition filed in Court of Disputed Returns challenging election under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA).
The petition alleged that a number of persons attended at the poling booth on polling day and were denied access to that booth by an electoral official appointed by the Electorial Commissioner on the grounds that they were not Anangu who were members of the Pipalyatjara/Kalka community.
The Third Respondent filed an application for a ruling on a question of law as to the jurisdiction of the Court of Disputed Returns to hear the petition.
Held:
1. The decision to determine eligibility to vote in the election fell to be made by the electorate officer. That determination having been made and not impeached at the time, no jurisdiction rests with the Court to set aside the election on that ground.
2. The Court of Disputed Returns does not have jurisdiction to determine the petition.
The petition is dismissed as falling outside of the jurisdiction of the Court of Disputed Returns.
Anangu Pitjantjantjara Yankunytjatjara Land Rights Act 1981 (SA) ss 4, 9, 9A, Sch 3 cl 2, cl 3, cl 6, cl 8, cl 9, cl 20, cl 22; Electoral Act 1985 (SA) ss 69, 71, 72; Local Government (Elections) Act 1999 (SA) s 72, referred to.

WORDS AND PHRASES CONSIDERED/DEFINED
"Anangu Pitjantjantjara Yankunytjatjara Executive Board", "Court of Disputed Returns", "disputed election", "determination of eligibility to vote", "eligibility to vote"

RICHARDS v PADDY & ORS
[2016] SADC 11
Civil

KOURAKIS CJ: In an election held on 25 May 2015 pursuant to Schedule 3 of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (Schedule 3 and the APY Land Rights Act respectively) Mikyika Paddy, the First Respondent, was elected to the Executive Board of Anangu Pitjantjatjara Yankunytjatjara (APY) for the electorate constituted by the Pipalyatjara/Kalka community. Mr Paddy received 30 votes. Mr Robby Richards and Ms Sally Scales were also candidates in that election and each polled 27 votes. On 25 June 2015 Mr Richards filed a petition in the Court of Disputed Returns constituted by Clause 20 of Schedule 3[1] challenging Mr Paddy’s election. That petition has been amended pursuant to permission given by the Court of Disputed Returns from time to time pursuant to Clause 22(1)(i) of Schedule 3. The last such amendment, the “Fourth Petition”, was filed on 16 December 2015 (the Petition).
[1] I have sat to hear the petition exercising my powers pursuant to s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA).
Section 9(2) of the APY Land Rights Act constitutes an Executive Board of APY which consists of 10 members elected in accordance with Schedule 3, s 9(6) of the APY Land Rights Act. and provides that the Electoral Commissioner must conduct that election and clause 3 of Schedule 3 appoints the Electoral Commissioner the Returning Officer. Clause 6 of Schedule 3 provides that an adult Anangu who is a member of a community constituting an electorate is eligible to vote in an election held in relation to that electorate.
In summary, the factual circumstances on which the petition is based are that on polling day Adrian Lewis, Kym Nelson, Herbert Nelson, Jacob Nelson, and Karirka Lewis attended at the Pipalyatjara/Kalka polling booth and were denied access to that booth by Simmy Mataira-Ngatai, an electoral official appointed by the Electoral Commissioner pursuant to Clause 3 of Schedule 3. Ms Mataira-Ngatai declined to allow them to vote on the grounds that they were not Anangu members of the Pipalyatjara/Kalka community.
No objection was taken at the time to her determination. It is also alleged that a Melissa Stewart[2] saw and heard the determination made by Ms Mataira-Ngatai and, forming the view that she too would be refused access to the polling booth, for that reason did not go forward to vote. If the petition were to proceed a factual question may well arise as to whether Ms Stewart was in fact denied a vote. Nonetheless, I will refer to all six persons as the excluded group.
[2] The third Petition filed 21 September 2015 referred to Milisa Stuart. An affidavit, the title page of which refers to Melissa Stuart, but signed by Melissa Stewart was filed on 3 November 3025. The Fourth Petition substituted the name Melissa Stewart for the name Milisa Stuart. The respondents do not accept that there has been a mere error of nomenclature and dispute that there is an identity between Melissa Stuart and Melissa Stewart.
Mr Richards alleges by paragraph [9] of the petition that the excluded group were entitled to vote and were wrongly refused access by the electoral officer.
The Electoral Commissioner, the third respondent, has brought an application challenging the jurisdiction of the Court of Disputed Returns to hear the petition. The jurisdiction of the Court of Disputed Returns is conferred by Clause 20:
20—Jurisdiction of the Court
(1)The Court has jurisdiction to hear and determine any petition addressed to it disputing the validity of an election under this Act.
(2)The Court may not call in question the eligibility of a person—
(a) to nominate for the office of the member of the Executive Board to be elected from a particular electorate; or
(b) to vote in an election held in relation to a particular electorate,
on the basis of whether or not they are an Anangu, or a member of a particular community group.
For the reasons which follow, I hold that the Court of Disputed Returns constituted by Schedule 3 does not have jurisdiction to determine the petition because the complaints it makes about the conduct of the election are necessarily premised on a disputed contention that the members of the excluded group were, at the relevant time, Anangu members of the Pipalyatjara/Kalka community, an enquiry which is excluded from the jurisdiction of the Court of Disputed Returns by Clause 20 of Schedule 3.
The Petition
The presently relevant paragraphs of the petition plead:
…
7.Pursuant to Schedule 3 to the Act:-
7.1     the Pipalyatjara School was designated as the place for voting in the election;
7.2     Ms Simmy Mataira Ngatai was appointed as an electoral official to assist with the conduct of the election.
8.     In assisting with the conduct of the election, Ms Ngatai was, at all materials times:-
8.1     acting on behalf of and/or was an agent for the third respondent;
8.2 had a duty under Schedule 3 to the Act to, inter alia, ensure that:-
8.2.1the election was conducted in accordance with the requirements of Schedule 3 to the Act;
8.2.2the election was conducted in a fair manner;
8.2.3any eligible voter who attended the Pipalyatjara School on 22 May 2015 with the intention of voting in the election was afforded the opportunity of voting.
9.As at 22 May 2015, the following persons were eligible voters in the election for the Pipalyatjara/Kalka electorate:-
9.1     Karirka Lewis;
9.2     Jacob Nelson;
9.3     Herbert Nelson;
9.4     Kym Nelson;
9.5     Adrian Nelson; and
9.6     ~~Milisa Stuart~~ Melissa Stewart
10.Each of the persons identified in paragraph 9 hereof attended the Pipalyatjara School on 22 May 2015 for the purpose of voting in the election.
11.Had they been able to cast a vote, each of the persons identified in paragraph 9 hereof would have voted for the petitioner.
12.As a consequence of the conduct of Ms Ngatai, particularised below, none of the persons identified in paragraph 9 hereof cast a vote in the election.
12.1   comments made by Ms Ngatai to each of them to the effect that he/she was not from that electorate and that he/she was thereby ineligible to vote in the election;
12.2   comments made by Ms Ngatai to each of them that he/she should go back to where he/she came from;
12.3   Ms Ngatai yelling or raising her voice when addressing each of the persons identified in paragraph 9 hereof as he/she was waiting in line to vote;
12.4   Ms Ngatai addressing each of the persons identified in paragraph 9 hereof in an angry or intimidating manner as he/she was waiting in line to vote.
13.The conduct of Ms Ngatai referred to in paragraph 12 hereof:-
13.1   was intimidatory;
13.2   had the effect of preventing or dissuading eligible voters from voting in the election;
13.3 was in breach of Schedule 3 to the Act.
…
It will be observed that the petition expressly avers by paragraph [8] that the Electoral Commissioner was duty bound to afford “eligible voters” an opportunity to vote, and by paragraph [9] that the members of the excluded group were eligible voters. For the reasons which I will develop that is no accident and no matter of mere form. The petition takes its form from the requirements of Schedule 3 and reflects the centrality of the determination of the excluded group’s eligibility to vote to the petition’s success.
I also mention here that it is the factual allegations made in paragraph [12] which affect the question of whether Ms Stewart was denied a vote and which would have required a determination if the petition fell within jurisdiction. However those disputed facts have no further relevance because if the excluded group were not entitled to vote, the way in which they were excluded does not matter and if they were entitled to vote the mere denial of an opportunity to do so is sufficient to amount to an irregularity in the conduct of the election howsoever the denial was effected.
The Interlocutory Application
The Electoral Commissioner has by interlocutory application sought an order as follows:
1. That paragraph 9 of the Third Petition be struck out, on the basis that, under clause 20(2) of Schedule 3 of the Act, the Court has no jurisdiction to hear the allegation made in that paragraph; …
With the consent of all of the parties I have treated the application as one seeking the final determination of a preliminary question of law on whether the petition falls within the jurisdiction of the Court of Disputed Returns.
The Statute
Section 9 of the APY Land Rights Act provides:
9—Executive Board of Anangu Pitjantjatjara Yankunytjatjara
…
(6)An election of members of the Executive Board—
(a) must be conducted within 3 months after the third anniversary of the previous election; and
(b) must be conducted by the Electoral Commissioner—
(i)in accordance with the rules set out in Schedule 3; and
(ii)to the extent that the rules set out in Schedule 3 fail to deal with a matter that, in the opinion of the Electoral Commissioner, is necessary for the proper conduct of the election—in accordance with rules determined by the Electoral Commissioner in relation to that matter.
(7)The validity of any election or return may be disputed in accordance with Schedule 3 and not otherwise.
…
Section 9A of the APY Land Rights Act creates certain offences relating to an election of the Executive Board. It provides:
9A—Offences relating to election of Executive Board
(1)A person who—
(a)exercises violence or intimidation, or offers or gives a bribe, with a view to—
(i)inducing a person to submit or withdraw candidature for an election under section 9; or
(ii)influencing the vote of a person at such an election; or
(iii)otherwise interfering with the due course of an election; or
(b)receives a bribe offered in contravention of paragraph (a),
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for seven years.
(2)A person who—
(a)dishonestly exercises, or attempts to exercise, a vote at an election under section 9 to which that person is not entitled; or
(b)dishonestly influences or attempts to influence the result of such an election; or
(c)hinders or interferes with the free exercise or performance, by another person, of a right in respect of such an election,
is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for one year.
…
Clause 2 of Schedule 3 constitutes 10 electorates which each elect a single member of the Executive Board. The Pipalyatjara/Kalka electorate is one of those electorates.
The Electoral Commissioner as the Returning Officer must appoint a relevant electoral official in relation to each electorate and may appoint one or more other electoral officials to assist in the conduct of an election. Pursuant to s 9 of the Electoral Act 1985 (SA) the Electoral Commissioner may delegate any of his or her powers or functions under that Act or any other Act. Delegation does not prevent the Electoral Commissioner from acting personally in any matter and is revocable at will.[3]
[3] Section 9(2) of the Electoral Act 1985 (SA).
Clause 6 of Schedule 3 provides:
6—Eligibility and nominations
(1)An Anangu of or above the age of 18 years who is a member of a community constituting an electorate will be eligible—
(a) to nominate for the office of the member of the Executive Board to be elected from the electorate; and
(b) to vote in an election held in relation to the electorate.
…
Anangu is defined by s 4 of the APY Land Rights Act to mean a person who is a member of the Pitjantjatjara, Yankunytjatjara or Ngaanyatjarra people and a traditional owner of the lands, or a part of them. The lands are described in Schedule 1 to the Act and constitute a number of large pastoral blocks and a reserve block in the north west of South Australia close to its borders with Western Australia and the Northern Territory.
Schedule 3 does not make any provision for an electoral roll. Section 9(6)(b)(ii) of the APY Land Rights Act allow the Electoral Commissioner to make additional rules to deal with any matter which, in the opinion of the Electoral Commissioner, is necessary for the proper conduct of the election. However the Electoral Commissioner has not made any rule for the keeping of a roll of electors. The Minister who had the carriage of the Bill to amend the APY Land Rights Act which resulted in the enactment of Schedule 3, the Honourable TG Roberts MLC was questioned about the absence of a roll by the Honourable RD Lawson.[4] In response the Minister explained:
The way in which the bill is drafted at the moment, it is the Electoral Commissioner’s role and responsibility to make sure that the method of voting, as the honourable member said, is one that is culturally understood; that the placing of a marble in a receptacle is adhered to. At the moment, the community has its own method of policing that is understood by all members of the community: if you are a member of the community you are allowed to vote; if you are not a member of the community you are not allowed to vote. So, a certain amount of peer group policing takes place.
… I am sure that amendments could be moved at a later date if this form of policing does not produce a result or if it produces a result that is contested by many. …
I guess the answer to that question is that we have to try a procedure based on the system that exists. If that does not work, if the identification process is not adhered to and if people move to multiple votes and that is not picked up by the Electoral Commissioner and the disciplines that he is able to exert on the process, we may have to look at amendments to the act at a later date, or it may come out in the review process, through which a recommendation may be made on a different form of voting.
[4] Hansard Tuesday 1 June 2004, page 1709.
This litigation arises out of the failure of the Bill to require the creation and maintenance of an electoral roll. I acknowledge that membership of the Pitjantjatjara, Yankunytjatjara or Ngaanyatjarra peoples, and membership of the communities constituting the Clause 2 electorates, are much more complex, and culturally sensitive, than questions of Australian citizenship and residence which determine electoral rolls for Local Government, State and Federal elections. However, on one view, the complexity of the issue is precisely why there should be a transparent, culturally appropriate and procedurally fair process to determine eligibility in advance of polling day, instead of allowing either the self-assessment of eligibility on the one hand or, on the other hand, imposing the largely inscrutable and unreviewable determination of an electoral official on election day. It is not difficult to imagine relatively simple processes, with appropriate safeguards including oversight by the Electoral Commissioner, by which the communities could determine the question of membership for the purposes of an electoral roll.
The importance of a roll in the orderly conduct of elections is manifest in the provisions of other State legislation. Sections 69, 71 and 72 of the Electoral Act 1985 (SA) provide:
69—Entitlement to vote
(1)Subject to this section, a person is entitled to vote at an election if he or she is enrolled for the district in which the election is held.
…
(4)Except as otherwise provided in this Act, the enrolment of a person on a district roll is conclusive evidence of the right of that person to vote at an election for that district.
…
71—Manner of voting
(1)An elector who is entitled to vote at an election may exercise that vote—
(a)     by attending at a polling place for the district for which he or she is enrolled and voting in the manner prescribed by this Act; or
(b)     in the case of an elector entitled to do so by virtue of subsection (2)—by making a declaration vote.
(2)     An elector—
…
(d)     whose name, as a result of an official error, does not appear on the certified list of electors for a district; or
(e)     who appears from a record erroneously made under this Act to have voted already in the election; or
…
is entitled to make a declaration vote.
(3)In addition, a person whose name has been removed from the electoral roll by virtue of an objection under Part 5 Division 4 is entitled to make a declaration vote at an election if—
(a)     the ground for the objection was that the person failed to notify an electoral registrar of a change of address in accordance with the requirements of this Act; and
(b)     the previous address and the new address are both in the same House of Assembly district.
(4)A person who satisfies the requirements of subsection (3) will be taken to be an elector for the purposes of the other provisions of this Act (with respect to the election or elections held on the day in relation to which the entitlement under that subsection arises).
72—Questions to be put to person claiming to vote
(1)An authorised officer must, before issuing voting papers to a person who appears personally before him or her claiming to vote, put the following questions to that person:
(a)     such questions as are necessary to establish the identity and the address of the principal place of residence of the claimant; and
(b)     the following question: Have you voted before in this election? or Have you voted before in these elections? (as the case requires),
and may put such further questions as are necessary to establish whether the claimant is entitled to vote.
(2)If a person claiming to vote to whom questions are put under this section—
(a)     refuses to answer fully any such question;
(b)     so answers any such question as to indicate that he or she is not entitled to vote,
the person's claim to vote must be rejected.

The Local Government (Elections) Act 1999 (SA) provides by s 72:
72—Certain matters not to be called in question
The entitlement to vote of a person whose name appears on the voters roll as an elector cannot be called in question by the Court.
In the absence of any analogous provisions in the APY Land Rights Act Mr Richards contends that the Electoral Commissioner, and his or her electoral officials, have no power to deny access to any person who presents himself or herself to vote save for some presently immaterial exceptions. If that contention is correct then, notwithstanding the pleading in paragraph [9] of the petition it is not necessary for the Court of Disputed Returns to determine whether or not a person refused access was eligible to vote pursuant to Clause 6 of Schedule 3 and the Court of Disputed Returns therefore has jurisdiction to determine the petition. On Mr Richard’s contention, para [9] need only have pleaded that the excluded group sought to vote, and, perhaps, that they believed themselves to be entitled to do so. That contention must be rejected.
Clause 9(6) of Schedule 3 imposes a duty on the Electoral Commissioner to conduct the election in accordance with Schedule 3 and therefore necessarily empowers the Electoral Commissioner to make such determinations, and take such steps, as are necessary to discharge that duty.
The eligibility to vote is central to the electoral scheme established by Schedule 3. The Electoral Commissioner must take all available steps to ensure that all such electors are given an opportunity to vote. Moreover, it is a necessary negative implication of the conferral of a right to vote on adult Anangu members of a community that no person other than an adult Anangu member of a community is entitled to vote. Again the Electoral Commissioner is bound by s 9(6) of the APY Land Rights Act to take reasonable steps to ensure that no ineligible person casts a vote.
Clause 8 of Schedule 3 places the casting of the vote under the control of the relevant electoral official. It provides that voting will be conducted by the use of voting marbles placed in receptacles each bearing the name and photograph of a candidate.[5] Each person wishing to vote must cast their vote in the presence of an electoral official (but otherwise in private) by placing a voting marble in the receptacle that bears the name and photograph of the candidate of their choice. It follows from s 9(6) of the APY Land Rights Act and Clause 6(1) that the relevant election official is required to make a determination of eligibility and to give access to the voting receptacles accordingly.
[5] Clause 8(2) of Schedule 3.
Leaving aside for the moment what might need to be shown about the effect of an irregularity on the election result, and the question of the jurisdiction of the Court of Disputed Returns, the statutory rights and obligations found in s 9 and Schedule 3 of the APY Land Rights Act are enforceable in a court of general jurisdiction. If a Judge of such a court were available to hear an oral application, brought urgently on election day, relief could, subject to discretionary considerations, be granted for an infringement of those rights and obligations by restraining an ineligible person from voting or requiring an electoral official to give an eligible person an opportunity to vote. Clause 20 of Schedule 3 does not therefore create a legal Alsatia; it does not render clause 6(1) an empty right. However, it does exclude from the relief available for breach of that right, referable to the disputed status of a person as an Anangu member of a community, orders affecting the election itself by removing those disputes from the jurisdiction of the Court of Disputed Returns
Counsel for the Petitioner accepted that a returning officer could refuse access to the voting booth of a person who was obviously a child, but denied that the electoral official could refuse access to an adult on the ground that they were not a member of a community. That submission conflates the questions of the existence of a power and the grounds on which it is exercised. Once the existence of a power to determine eligibility is accepted, there can be no distinction between the electoral qualifications prescribed by Clause 6(1) of Schedule 3. If the power exists with respect to the criterion of age, it must also exist with respect to the criteria of being an Anangu person and a member of a relevant community. Nor, contrary to the Petitioner’s submission, is there any basis to limit the power by reference to whether the opinion formed by an electoral official goes so far as to suspect fraud on the part of the prospective voter. An electoral official charged with the obligation to conduct the election in accordance with Schedule 3 is necessarily empowered to turn away ineligible persons irrespective of what he or she might suspect about their purposes. The electoral official is necessarily empowered to turn away a visiting tourist in the same way, as the Petitioner accepts, that the returning officer can turn away a five year old child.
Counsel for the Petitioner relied heavily on the greater difficulty in determining questions of tribal or community membership. I accept that that is a practical reason for a distinction of the kind for which the Petitioner contends, but it is not a distinction which finds any basis in Schedule 3.
If the Petitioner’s contention in this respect is accepted the scheme enacted by Schedule 3 would for all practical purposes be subverted and the right given by Clause 6(1) largely illusory. The construction contented for by the Petitioner effectively allows for self-assessment of eligibility by each individual who comes forward to vote. Moreover if that construction be right there would seem little reason to have excluded from the jurisdiction of the Court of Disputed Returns jurisdiction to determine eligibility on the grounds of tribal or community membership, save, perhaps, insofar as the question of the good faith of that self-determination could be challenged. Persons who were present on the APY Lands having obtained permits to be on those lands for one reason or another could present themselves to vote. Anangu from one community could participate in the election in another community, effectively undermining the electoral scheme of Schedule 3. The possible good faith requirement to which I have referred would not as a matter of practicality save the scheme.
I hold that clause 6(1) of Schedule 3 confers a legal right to vote on eligible persons which is to be determined objectively and not by self-identification. The right is enforced in the first instance by the administrative action of the Electoral Commissioner or his or her electoral officials and may, subject to the practical difficulties, be enforced judicially while the poll remains open.
Mr Richard’s alternative contention is that, if the returning officer was empowered to make a determination of eligibility on the grounds of the prospective voter being an Anangu member of the relevant community, and to give or deny access to the voting booth accordingly, the Court of Disputed Returns may nonetheless enquire into the election on the ground that eligible voters were turned away. The Petitioner contends that the enquiry in such a case is not into the eligibility of a person who did vote, but into the asserted ineligibility of the person who was turned away. In particular he contends the petition does “not call into question the eligibility” of any person to vote, indeed it asserts the eligibility of the excluded group.
I accept that the way in which clause 20(2) of Schedule 3 is framed appears to address the issue of the eligibility of a person who has in fact voted. It is for that reason that the Petitioner contends that Clause 20 is a “one way street” such that although the eligibility of a person who has voted cannot be brought into question, the Court of Disputed Returns can enquire into the eligibility to vote of a person who was denied that opportunity. I reject that wholly semantic contention. The expression “call in question” is used in the sense of “enquire into”. So much is made clear by the concluding words of Clause 20 which provide “on the basis of whether or not they are an Anangu, or a member of a particular community group”.
In any event, in responding to the petition the Respondents “call in question” the eligibility of the excluded group to vote by contending that denying them an opportunity to vote was not an irregularity because they had no right to vote. Accepting, as I have held, that clause 6(1) of Schedule 3, does not allow for self-assessment of eligibility, on the joining of issue in this way the petition itself falls outside the jurisdiction of the Court of Disputed Returns even though it, in terms, asserts, rather than denies, the eligibility of the excluded group.
Considering the broader context, there is no sensible reason for a distinction to be made in the statutory limitation of the Court of Disputed Return’s jurisdiction between enquiring into the eligibility of persons who voted and the eligibility of persons who were denied a vote. The mischief to which Clause 20(2) is directed is the avoidance of disputes about the validity of elections on the controversial grounds of membership of one or other of the Anangu peoples or of the relevant communities. It is reasonably clear from the Minister’s response, which I set out above, that the failure to make any provision for a roll was a recognition of the culturally sensitive nature of the enquiries and a recognition that the issues may be resolved internally by the communities themselves. This case manifests a failure of that hope. Accordingly a decision fell to be made by the electoral official. The determination having been made and not impeached at the time, the Court of Disputed Returns has no jurisdiction to set aside the election on the disputed ground that the electoral officials determination denied a person or persons who were adult Anangu members of the Pipalyatjara/Kalka community an opportunity to vote.
Conclusion
I would dismiss the petition as falling outside the jurisdiction of the Court of Disputed Returns.