Did the Council's acts involve a distinction based on Aboriginality?
83 In the circumstances set out above, the question of whether s 9(1) of the RD Act is contravened turns, first, on whether the resolutions of the Council to conduct the ballot in accordance with the provisions in the LGE Act were "based on" the Aboriginality of BDAC's members. The same question arises with respect to the Council's "facilitation" of the conduct of the ballot itself.
84 If these questions are resolved in the affirmative, the question is then whether the resolutions and the facilitation had the effect of impairing the two human rights or fundamental freedoms claimed by BDAC, namely:
(a) their political rights, particularly, the right to participate in the ballot; and
(b) the right to enjoy the land over which they hold native title rights within the Council's local government area.
85 In my opinion, it should be accepted that the non-inclusion of the members of BDAC in the franchise for the ballot involved a distinction or exclusion. They (and others who did not meet the requirements for the franchise) were thereby precluded from participating in the ballot being arranged by the Council for the purposes of ascertaining the views of the Kimba "community", using that term in an extended sense. I did not understand the Council to contend to the contrary.
86 However, accepting that that is so, BDAC does not establish that the exclusion was "based on" the Aboriginality of its members. In particular, it has not established that the decision concerning the franchise for the ballot was referrable to the Aboriginality of its members. A number of considerations indicate that that is so.
87 First, BDAC did not point to any matter indicating that the Council's resolutions or its "facilitation" of the ballot were referrable to the Aboriginality of its members. Instead, BDAC's submissions focussed on the outcome of the resolutions, namely, that its members are in fact excluded from the ballot. As already seen, the Council's adoption of the s 14(1) franchise for the ballot means that that exclusion arises not by reason of the Aboriginality of BDAC's members, but by reason of their place of residence and the fact that they are not ratepayers. Accordingly, it is the resolution to adopt the s 14(1) franchise which is the critical matter.
88 Ms Larwood deposed that the matters on which the Council relied in passing the resolutions were:
(a) the LGE Act provides a defined set of rules for the conduct of elections and polls;
(b) they are a process with which the Council and the local community are familiar, by reason of their previous use; and
(c) they provide a high level of transparency and accountability, as well as independence from the Council.
89 Ms Larwood's evidence that these were the matters on which the Council relied was not contested and there is no reason to suppose that they were not the matters on which the Council's decision turned. On the contrary, a number of considerations indicate that they were sensible matters for the Council to take into account.
90 None of the matters identified by Ms Larwood is referrable to the Aboriginality of BDAC's members.
91 Ms Larwood said, and I accept, that when the Council originally resolved on 9 May 2018 to use the LGE Act provisions for the ballot, there had been no discussion about including native title holders at all. It was a matter to which the Council had not adverted. BDAC accepted that it was on 9 May 2018 when the "effective" decision had been made.
92 Ms Larwood deposed that following its receipt of the letter from BDAC of 30 May 2018, the Council had considered it with reference to the criteria in s 14 of the LGE Act and had obtained legal advice to the effect that native title holders were not within those criteria unless they were also a resident or ratepayer. Following the receipt of BDAC's letter of 12 June 2018, the Council again considered the position of native title holders in relation to the ballot. Ms Larwood said in respect of the Council's decision:
[T]he decision wasn't taken lightly. It was investigated properly. There was a lot of issues that would arise that if - if the Barngarla Determination Aboriginal Corporation - we went outside of the guidelines to allow them to vote, it then opened up, should we be letting all owners who are non-ratepayers have a vote; should we be letting those that occupy businesses or premises in Kimba but aren't actually eligible to vote because they're not a ratepayer to vote. It also then brought about who would vote, as in, should all members vote or, as owners who are ratepayers, they only get one vote. So it brought that into question. It also brings into question along the lines of, people that may shop, work, socialise in Kimba but don't actually own land in Kimba don't get a vote. So there's a whole - there was a whole consideration given to that. I don't want to make it seem like we just brushed it off, because there was some intense discussion about it. And we did look at other - other concerns that would bring into it if we did go down that path.
93 This evidence was not challenged and I accept it. It indicates that the Council's continuing decision that BDAC's members should not be included in the ballot was not made because of their Aboriginality, but as part of a more general discussion about whether the s 14(1) franchise should be expanded for the purposes of the ballot. The Council had to make a decision as to the categories of persons who constituted the Kimba "community" for the purposes of the ballot. It appreciated that once it departed from the s 14(1) franchise, a number of difficulties and uncertainties arose. It is understandable that the Council sought to avoid those difficulties by adhering to the provisions with which it and the community were familiar, which had an objective existence, and which had a high level of transparency and independence from the Council.
94 The Council did not initiate the proposal to use the s 14 franchise. It was the Minister who, while acknowledging the Council's discretion in the matter, had suggested that the "default position" should be the "parameters" used in the 2017 Poll. In acceding to that suggestion, the Council was acting consistently with its previous position, and there has not been any suggestion that that position had been racially based. In saying that, I am not overlooking that the Croft (No 2) determination had not yet come into effect when the 2017 Poll was conducted nor the Minister's suggestion made.
95 A consideration related to the matters to which Ms Larwood deposed is the confidence which the Council could have in the "integrity" of the composition of the franchise. In adopting the s 14(1) franchise, the Council had some assurance as to that composition. It could assume that those who were on the House of Assembly roll had satisfied the eligibility and the procedural requirements for enrolment contained in ss 32 and 32B of the Electoral Act 1985 (SA). It could assume that those on the voters roll prepared by the CEO pursuant to ss 14 and 15 of the LGE Act had satisfied the requirements of those provisions. But the Council could be less certain of the membership of BDAC. It had not been provided with the eligibility requirements for membership (see ss 141-1 and 141-25 of the CATSI Act) and it did not have knowledge of the way in which BDAC did in practice maintain its register of members.
96 Moreover, there is at least one significant disconformity between potential eligibility for membership of BDAC and the s 14(1) franchise. Sections 29-10 and 141-15 of the CATSI Act provide that persons who are at least 15 years old satisfy the age of membership requirement for the purposes of that Act. Section 14(1) of the LGE Act, on the other hand, requires that persons have reached the age of majority in order to be eligible.
97 Ms Larwood did not depose that the Council had adverted to these matters but their existence does indicate that the Council's desire to use a voting system with which it and its community were familiar and which had a high level of transparency and accountability has an objective basis.
98 The LGE Act does not include native title holders in the s 14(1) franchise even though such persons are, for the purposes of the LG Act, within the definition of an "owner" of land. BDAC's submissions did not indicate the significance, if any, to be attached to the circumstance that native title holders are within the LG Act definition of "owner". The fact of the matter is that there are various categories of persons, apart from native title holders, who are owners but who do not come within the s 14(1) franchise.
99 Section 14 of the LGE Act can be understood as reflecting a policy judgment made by the South Australian Parliament as to those persons appropriate to participate in the democratic election of councillors and therefore "to have a say" in the affairs of a council and of the community for which it is responsible. It was not suggested that s 14 itself offends the provisions in the RD Act. It is true that the Council could have adopted a different franchise from that contained in ss 14(1) and 16 while otherwise using the provisions in the LGE Act. But the fact that the Council chose to use the same franchise as it is required by law to use for elections and for polls under s 9 (which has no reference to Aboriginality) points against the exclusion of the BDAC members having been attributable to their Aboriginality, or account having been taken in some way of that Aboriginality.
100 The Council's adoption of the s 14(1) franchise did not involve any differential treatment of the non-resident native title holders, on the one hand, and other non-residents who have a property interest in the Council area but are not ratepayers in respect of that interest. BDAC's members are on the "same footing" as such persons.
101 The selection of a franchise for a ballot, unless it is made open to anyone and everyone, necessarily involves the exclusion of those not meeting the criteria for the franchise. It is an unavoidable consequence. The Council's selection of the s 14(1) franchise necessarily excluded a number of people from the ballot, including residents and occupiers of premises within its Council area. These included:
(a) all persons under the age of 18 years, irrespective of the length of their residence in the Council area;
(b) persons resident in the Council area who were not enrolled as electors for the House of Assembly in respect of a place of residence in the Council area and who had not made application to the CEO to be enrolled on the voters roll;
(c) persons who were ratepayers in respect of rateable property within the Council area who had not made application to the CEO to be enrolled; and
(d) members of a body corporate or a group of persons, other than the "designated person", who satisfied the requirements of s 14(1)(c).
102 Ms Larwood's affidavit indicated that these are not merely hypothetical examples. She noted, for example, that there are approximately 18 businesses occupying properties within the Council area whose operators are not eligible to be on the voters roll because they are not ratepayers, as well as a number of entities who are exempt from paying rates.
103 Of course, the fact that others were excluded from the ballot by reference to different considerations does not, of itself, mean that the exclusion of the members of BDAC was not referrable to their Aboriginality. But the fact that persons were excluded on the basis of the same criteria as applied to BDAC members and which had nothing to do with Aboriginality, does point against the exclusion of BDAC's members having been referrable to their Aboriginality.
104 The native title on which BDAC relies for the interest of its members is a form of group interest. Native title is a communal right and native title rights and interests are communal in nature: Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 63 (Brennan J), at 110 (Deane and Gaudron JJ) and at 178-9 (Toohey J). See also Griffiths v Northern Territory of Australia [2016] FCA 900 at [219]. Accordingly, the position of BDAC's members in relation to the ballot is in some respects similar to that of members of a group to which s 14(1)(c) of the LGE Act applies.
105 As the Council submitted, BDAC seeks that each of its members have a vote in respect of their joint interest in the native title land. This could amount to 211 votes. In contrast, all other joint owners have only one vote. Accordingly, putting to one side the fact that the native title holders of BDAC are not ratepayers, it is apparent that BDAC seeks to have its members treated differently from the members of other groups and, in fact, for them to have greater rights. The potential for this to be the case provides a further objective justification for the Council's desire to have the ballot conducted in accordance with a known and accepted set of rules to which is attached a high level of transparency and accountability.
106 The Solicitor-General for the State of South Australia submitted that, by seeking to have each of its members entitled to an individual vote in a context in which members of other groups did not have such an entitlement, BDAC was seeking a form of special measure of the kind to which s 8 of the RD Act refers. That is to say, BDAC seeks by these proceedings a result which would mean that rights to vote in the ballot would vary according to racial considerations. It is by no means clear that a decision not to make a special measure could of itself infringe s 9(1) of the RD Act. This is a large question which, in the view I take, it is not necessary to address for the purposes of resolving the present application.
107 Finally, it is pertinent that BDAC members who are within the s 14 franchise are eligible to vote. As noted earlier, it seems that there may not be any BDAC members in this category. Nevertheless, the fact that BDAC members who are within the s 14 criteria are entitled to vote militates against a conclusion that their exclusion is referrable to their Aboriginality.
108 I also record that there is no evidence that the Council had any knowledge at all of the identities or addresses of BDAC members at the time it passed the resolutions. Again, that is not decisive because, as indicated earlier, motive and intention are not necessary elements of a contravention of s 9(1). Nevertheless, I consider that this is another matter militating against a conclusion that the exclusion of BDAC members is attributable to their Aboriginality.
109 For these reasons, I consider that BDAC does not establish that either of the "acts" on which it relies contravenes s 9(1) of the RD Act.