BURNUM BURNUM v ELECTORAL COMMISSIONER OF NEW

Under the Aboriginal Land Rights Act 1983 a member of a Local Aboriginal Land Council may stand for election to the NSW Aboriginal Land Council. The Act defines a member as a person whose name has been listed on the roll of the Local Council in certain circumstances. The Regulations made under the Act purport to confer upon the Chairperson of the NSW Aboriginal Land Council a power to add a person's name to such a roll in certain circumstances. The appellant's name was added to a roll in purported pursuance of that power and he was elected to the NSW Aboriginal Land Council.

HELD - The appellant was not eligible for election for two reasons:

1 The regulations purporting to confer on the Chairperson the power to make a person a member of a Local Council other than in one of the ways provided by the Act were ultra vires and invalid.

2 On the true construction of the regulations if valid, the appellant's case did not fall within the prescribed circumstances. When regulations prescribe the publication of a notice stating that a certain step, to be effective, must be taken within a certain time, then the regulations must have been intended to operate on the basis that such information would be true. The step, therefore, must be taken within the time stipulated in the notice.

Devine v Devine and Queensland Insurance Co Ltd (1928) 28 SR (NSW) 503, TA Brierley Investments Ltd v Landmark Corporation Ltd (1966) 120 CLR 224 applied.

Clarke JA. I agree with Gleeson CJ. Handley JA. I agree with Gleeson CJ.

Gleeson CJ. This is an appeal from a decision of Pearlman J, the Chief Judge of the Land and Environment Court, in proceedings that were brought to challenge the validity of the election of the appellant, Burnum Burnum, to the position of councillor, representing the South Coast Region, of the New South Wales Aboriginal Land Council. The challenge was based upon the contention that the appellant was not eligible to be a candidate for election. Pearlman J upheld the challenge and made certain consequential orders concerning the election. The appropriateness of those consequential orders is not in question in this appeal. The issue is whether her Honour was correct to conclude that, in the events that occurred, the appellant was not eligible to be a candidate at the election.

The Aboriginal Land Rights Act 1983 established three kinds of Council. They are Local Aboriginal Land Councils, Regional Aboriginal Land Councils, and the New South Wales Aboriginal Land Council.

The term 'Aboriginal' is defined to mean a person who is a member of the Aboriginal race of Australia, who identifies as an Aboriginal, and who is accepted by the Aboriginal community as an Aboriginal.

Section 6 of the Act provides that all adult Aborigines who are listed in a Local Aboriginal Land Council roll for a Local Aboriginal Land Council area shall be members of the Local Aboriginal Land Council for that area.

By virtue of s 7, it is the function of the Secretary of a Local Aboriginal Land Council to prepare and maintain the roll of members of that Council. There are two ways in which a person may become a member. The Secretary is obliged to list on the roll the names of all adult Aborigines who reside within the relevant area, and who have requested in writing that they be enrolled as members of the Local Aboriginal Land Council. The Secretary is also required to list on the roll the names of those adult Aborigines who have an association with the relevant area and who, upon application made in writing, have been accepted by a meeting of the Local Council as members.

It is unnecessary, for the purposes of this appeal, to consider the area of discretion that may be available to a meeting of a Local Aboriginal Land Council to decline to accept an adult Aborigine who claims to have an association with the area. Whether the concept of acceptance in the definition of 'Aboriginal' in s 4 of the Act is the same as the concept of acceptance referred to in s 7(2) is a question that does not arise in these proceedings.

The provisions of s 8 of the Act are also material. That section obliges a Local Aboriginal Land Council to hold meetings in certain circumstances, and with a certain degree of regularity. The detail of those provisions is unimportant, but what is significant is that the matter is provided for in the Act.

The functions of a Local Aboriginal Land Council are set out in s 12. They include the holding of lands vested in the Council, the making of applications for the acquisition of land, the making of claims to Crown land, the protection of the interests of Aborigines in the area in relation to the management, use and control of lands, and various other important functions.

In 1990, by Act No 60 of 1990, the Act was amended in a number of respects. The amendments provided, inter alia, for the election, by members of Local Aboriginal Land Councils, of councillors of the New South Wales Aboriginal Land Council.

Sections 25, 26 and 27, which were inserted in 1990, are in the following terms:

25.(1) The regulations may make provision for or with respect to the election of councillors of the New South Wales Aboriginal Land Council.

(2) 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 the election of those councillors.

(3) The returning officer has the functions conferred or imposed by the regulations in relation to the elections.

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.

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 challenge to the eligibility of the appellant to be a candidate for election to the New South Wales Aboriginal Land Council is based upon the provisions of s 27, and turns upon whether he was a member of a particular Local Council.

URIRNUM BURNUM v ELECTORAL COMMISSIONER OF NEW SOUTH WALES (Gleeso& CJ)

The appellant was elected a councillor of the New South Wales Aboriginal Land Council upon the basis that, for the purposes of s 27, he was a member of the Jerringah Local Aboriginal Land Council, which is within the area of the South Coast Regional Land Council. It is the procedure by which he became, or purported to become, a member of the Jerringah Local Aboriginal Land Council that is in question.

Prior to March 1992 the appellant was not a member of the Jerringah Local Aboriginal Land Council. He does not reside within the Council's area, but he claims to have an association with that area. However, at the critical time no meeting of the Jerringah Local Aboriginal Land Council had accepted him as a member. On the face of it, therefore, he did not satisfy the requirements of s 7 of the Act. The Secretary of the Jerringah Local Aboriginal Land Council had not listed his name on the roll of members of the Council. At the time of the election, his name appeared on that roll by reason of certain actions taken by the Chairperson of the New South Wales Aboriginal Land Council in purported compliance with the provisions of certain regulations that will be referred to below. Before coming to those regulations, however, it is necessary to make some further reference to the facts of the case.

In February 1992 the Electoral Commissioner of New South Wales, as Returning Officer, gave notice of an election of members of the New South Wales Aboriginal Land Council for the South Coast region. The notice stated who could vote, and how to apply for membership of a Local Aboriginal Land Council, and provided that applications for membership of a Local Aboriginal Land Council were to be made in writing to theSecretary of the Local Aboriginal Land Council not later than noon on Wednesday 12 February 1992.

On 11 February 1992 the appellant attempted to lodge a form of application for membership with an employee of the New South Wales Aboriginal Land Council, but he was told that he should lodge his application with the Secretary of the Local Aboriginal Land Council. Subsequently, and later than 12 February 1992, the appellant lodged an application for membership with the Secretary of the Jerringah Local Aboriginal Land Council. There was some disagreement as to when this took place, but Pearlman J found that it occurred on 19 February 1992.

Earlier in February, eleven other persons, who were also nonresidents of the area, but who claimed an association with it, had lodged applications for membership. No meeting of the Jerringah Aboriginal Land Council was held within the period of 7 days immediately following the closing date specified in the notice of election. However, the Secretary of the Jerringah Aboriginal Land Council having informed Mr Bryce, an employee of the New South Wales Aboriginal Land Council, of the application that had been made by the appellant for membership of the Jerringah Aboriginal Land Council, Mr Bryce thereupon entered the name of the appellant, amongst others, on the roll for the South Coast Regional Aboriginal Land Council, and that roll, with the appellant's name included, was certified by the Chairperson of the New South Wales Aboriginal Land Council. That was how the appellant came to be treated as eligible for election and, at the election, he received the greatest number of votes amongst the candidates for the South Coast region.

The actions of the employee and Chairperson of the New South Wales Aboriginal Land Council were purportedly taken pursuant to the provisions of certain regulations that were made under the Aboriginal Land Rights Act following its amendment in 1990. Section 68(1) of theAct provides that the Governor may make regulations, not inconsistent with the Act, for or with respect

to any matter that by the Act is required or permitted to be prescribed, or that is necessary or convenient to be prescribed for carrying out or giving effect to the Act. In addition, s 25(1) provides that regulations may make provision for or with respect to the election of councillors of the New South Wales Aboriginal Land Council, and s 7 provides that the Governor may make regulations for or with respect to the preparation and maintenance of Local Aboriginal Land Council

Regulations 21 and 22, promulgated in 1990, are in the following terms:

21. (1) The Minister, in consultation with the New South Wales Aboriginal Land Council, is to determine when an election of all councillors is to be held in accordance with section 27A or 57B (2) of the Act.

The returning officer is to give notice of an election of all councillors as soon as practicable after having been notified of such an election by or on behalf of the Minister. The returning officer is to give notice of the election in each Regional Aboriginal Land Council area by causing a notice concerning the election to be published in at least 1 newspaper circulating in the area and in such other manner as may be determined by the returning officer. 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 such a Councilbefore 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. The date fixed for the closing date of the roll must be not earlier than 14 days and not later than 21 days after the date of giving notice of the election.

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 the roll for the area.

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).

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.

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.

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

URIRNUM BURNUM v ELECTORAL COMMISSIONER OF NEW SOUTH WALES (Gleesoi CJ)

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.

Although the appellant had not lodged his application for membership of the Jerringah Local Aboriginal Land Council within the period specified in the notice of election given pursuant to regulation 21(4), 11 other persons, who were non-residents of the area, and whose applications for membership fell to be dealt with under the provisions of s 7(2)(b) of the Act (requiring consideration of their acceptability by a meeting of members of the Local Council) had done so. Accordingly, the Jerringah Local Aboriginal Land Council was required to hold a meeting within the period of 7 days immediately following the closing date specified in the notice of election. No such meeting was held. On that basis, the Chairperson of the New South Wales Aboriginal Land Council took the view that there had been a failure to hold a meeting as required, within the meaning of regulation 22(4), and that there was an obligation to list on the relevant roll, for the purposes of the election, a number of persons including the appellant.

The challenge to the appellant's eligibility for election was made upon two grounds. First, it was contended that paragraphs (4) and (5) of regulation 22 were invalid, being beyond the regulation-making power contained in the Act. Secondly, it was contended that, even if those provisions were valid, they did not require or justify the inclusion of theappellant's name on the relevant roll because he had not applied for membership within the time specified in the notice given pursuant to regulation 21(4)(c).

Pearlman J resolved the first of those issues adversely to the appellant. Her Honour held that the provisions of regulation 22(4) and (5) were ultra vires and invalid.

The purpose of the provisions under challenge is clear enough. The argument in the present appeal proceeded upon the assumption of the validity of paragraphs (1), (2) and (3) of regulation 22. There is a possible argument that those provisions themselves are invalid as being inconsistent with s 8 of the Act, which states the circumstances in which a Local Council is obliged to hold meetings, but it is unnecessary to go into that question further. Assuming the validity of regulation 22(1), (2) and (3) there arises a question as to what is to occur in the event that a Local Council fails to comply with its obligations to hold a meeting following a notice of election and thereby deliberately or inadvertently frustrates a person's attempt to achieve eligibility as a candidate. However, the fact that it is understandable that someone should desire to address that problem does not mean that any chosen method of dealing with it was within the regulation-making power.

The meaning of regulation 22(4) and (5) is not entirely clear. The requirement to list a person's name on the roll of a Local Aboriginal Land Council 'for the purposes of the election of councillors of the New South Wales Aboriginal Land Council' raises a question as to whether that person, whilst on the roll, is a member of the Local Council for the purpose of the exercise of the ordinary (and possibly quite important) functions of the Council.

However, the primary difficulty raised in relation to regulations 22(4) and (5) is that, whatever their precise effect might be, they gobeyond the purview of the Act, and operate in a manner inconsistent with it, by altering the effect of the provisions of the Act with respect to the membership of Local Aboriginal Land Councils. Even though they do this only for the purposes of the election of

councillors of the New South Wales Aboriginal Land Council, (whatever exactly that might mean), the argument of the respondents, which succeeded at first instance, is that the regulation-making power given by the Act does not extend to making regulations which alter, or add to, the provisions of the Act as to who is a member of a Local Aboriginal Land Council.

The Aboriginal Land Rights Act, in ss 26 and 27, provides that only members of Local Aboriginal Land Councils may vote at, and stand as candidates for, elections of the kind with which we are presently concerned. The Act, in ss 6 and 7, identifies the persons who are members of a Local Council and prescribes the procedure by which a person may become a member.

The regulations in question purport to create a new class of member of a Local Council, ie a member for the purposes of an election, and they purport to set up another procedure, additional to that prescribed by the Act, by which a person may become such a member. This goes beyond the scope of the regulation-making power. The power to make regulations with respect to the preparation and maintenance of Local Council rolls granted by s 7 does not extend to prescribing that persons other than the Secretary of the Council may maintain the roll (cf s 7(1)). The power to make regulations with respect to elections does not extend to increasing franchise and eligibility beyond what is specified in ss 26 and 27. The general regulation-making power is limited by the requirement of consistency with the Act. The regulations in question are inconsistent with ss 6 and 7 of the Act. To use the language of the majority of the High Court in Shanahan v Scott (1957) 96 CLR 245 at 254, the regulations inquestion involve an attempt not to complement but to supplement the plan of the legislation.

Pearlman J was correct in accepting the submissions of the respondents on this point and in holding that regulations 22(4) and (5) are invalid.

It is not strictly necessary to consider the other ground on which the actions of the Chairperson of the New South Wales Aboriginal Land Council were called in question. However, the issue was decided by Pearlman J, and it is appropriate for this Court to deal with it.

The point made by the respondents, as indicated above, was that, on any view of the facts, the appellant had not given his notice of application for membership in the manner and time required by the notice under regulation 21(4) and, therefore, his was not an application to which regulation 22(4) applied. It was argued on behalf of the appellant that, there being other applications that had been made within time, there was a failure by the Jerringah Local Aboriginal Land Council to hold a meeting as required, and, therefore, the Chairperson of the New South Wales Aboriginal Land Council was entitled and bound to treat the appellant as an applicant whose name had to be listed on the roll, because, by the time the Chairperson came to look at the matter, the applicant's application had been lodged.

Pearlman J resolved this issue in favour of the appellant. She was of the view that, so long as an application for membership is lodged before the meeting at which it is to be considered, it is immaterial when it is lodged. She said that there was no mandatory time for the lodgment of the application, and the reference to a closing date in clause 21(4)(c), being only a reference to the information which must appear on a notice calling an election, does not have the effect of prescribing a time for the lodging of applications.

URIRNUM BURNUM v ELECTORAL COMMISSIONER OF NEW SOUTH WALES (Gleeso"i CJ)

I respectfully disagree. It is true that regulation 21(4)(c) in its terms deals only with information which is to appear in a certain notice, but, if the reasoning of her Honour were correct, such information would be false or at least seriously misleading. When regulations prescribe the publication of a notice stating that a certain step, to be effective, must be taken within a certain time, then the regulations must have been intended to operate on the basis that such information would be true. The step, therefore, must be taken within the time stipulated in the notice. This approach to the construction of the regulations is in accordance with well-established principle (cf Devine v Devine and Queensland Insurance Co Ltd (1928) 28 SR (NSW) 503 at 508; R A Brierley Investments Ltd v Landmark Corporation Ltd (1966) 120 CLR 224 at 231-232). The appellant having failed to lodge his application within the prescribed time, his was not an application within the purview of regulation 22(4).

This issue also should be resolved adversely to the appellant.

Counsel for the appellant: L C McDermott/G T Gillett

Solicitors for the appellant: Anthony C Simpson and Associates

Counsel for the respondent: 2 A C Bridge: 3 T S Hale: 4 T F Robertson

Solicitors for the respondent: 2 A P Sparke and Broad: 3 Denis Solari Son and Associates: 4 Goddard Dean and Co