62 The NSWALC also argued that there is no implied repeal of the Court's jurisdiction as held in Shergold. In Shergold, which was referred in Laurie No. 1 at [87], access was sought to documents under FOI legislation. In response, a certificate was issued by the relevant government authority denying access to the documents on public interest grounds. There was a right to challenge FOI decisions in the Administrative Appeals Tribunal (AAT) but in respect of certificates the AAT has relatively limited powers. Instead judicial review of the decision to issue the certificate was sought in the Federal Court. The question arose of whether the jurisdiction of the Federal Court to determine the challenge was impliedly repealed by the grant of jurisdiction conferred on the AAT under the relevant legislation. The unanimous judgment of the High Court found there was no evidence of a parliamentary intention to limit the Federal Court's jurisdiction and no implied repeal was established. The Applicant submits at par 38 above that Shergold is not relevant because the Federal Court otherwise had jurisdiction. The principles in Shergold nevertheless apply in this matter. In Laurie No 1 I held there was no implied repeal of the Court's jurisdiction as a consequence of the powers given to the ADT and I see no reason to change my view.
63 The Applicant's argument is not couched in terms of implied repeal, rather it argues that the ADT has exclusive jurisdiction to make an order that the Applicant's position as a councillor is vacant in light of s 135 and s 137 of the ALR Act. The issue however is whether there is implied repeal of the Court's jurisdiction and there is not, as held in Laurie No 1 at [88]. The issue of whether the Court has power to make a declaration or order in light of s 135 and s 137 is separate and that is discussed below.
64 To hold that the Court has jurisdiction does not allow the NSWALC to "take advantage of its own wrong" as the Applicant submitted at par 50. Given the complexity of issues raised by the circumstances and relevant statutory provisions in this case, it was not self evident that proceedings should have been taken by the NSWALC (or anyone else) to seek an order in the ADT. While the NSWALC was unsuccessful on Issues 1 and 3 concerning the election of the Applicant, Issue 2 concerning whether her position is vacant continues to be in issue in these proceedings. Issue 2 only remains on foot because of my determination in Laurie No 1 that the Registrar's decision not to ignore the 2003 driving conviction is valid. No suggestion that the NSWALC has acted incorrectly in some way can arise in these circumstances.
Timing of disqualification/casual vacancy
(i) disqualifying event since election to office necessary?
65 The Applicant argues that the NSWALC has to identify when the disqualification of the Applicant took place since the Applicant's election. As it has not done so, no event has occurred to which s 133(e) can apply. The key issue in dispute is the effect of s 133(e). In making that submission the Applicant's counsel seeks to reargue, inter alia, my finding in Laurie No 1 at [135] - [136] that the provisions in s 132 and s 133 of the ALR Act continue to apply to the Applicant after her election as a councillor in May 2007 because of events which occurred before her election, namely the 2003 traffic conviction. That conviction comes within s 132(1)(c). The Applicant admits that the conviction means she was otherwise disqualified from being elected as a councillor.
66 For the reasons already stated in Laurie No 1 at [135]-[136] and confirmed by the arguments of the NSWALC in these proceedings at par 26-28, convictions recorded before the election of a councillor can disqualify him/her from being a councillor under s 133(e) after his/her election. I see no reason to depart from my previous reasoning on this issue. As submitted by the NSWALC at [29] it is unnecessary that the NSWALC identify a further disqualifying event that has occurred since the Applicant's election which gives rise to her disqualification under s 133(e).
67 I also consider that this construction of s 133(e) accords with the objects and purposes of the ALR Act as amended in the Aboriginal Land Rights Amendment Act 2006 in relation to the election of appropriately qualified persons to the position of councillor. That amendment Act introduced far more extensive disqualification provisions for potential councillors in s 132 than had previously existed. As referred to in the NSWALC's submissions in par 30, the Second Reading Speech made when the 2006 amendment bill was introduced emphasised the intention to have councillors without certain convictions elected.
(ii) timing of disqualification
68 An event that has occurred since the Applicant's election is that the Registrar has exercised his discretion under s 132(2) not to ignore the 2003 traffic conviction for the purposes of s 132(1)(c). The Applicant's judicial review proceedings to have that decision declared invalid were unsuccessful in Laurie No 1.
69 Amendments were made in cl 22B of the amended points of cross-claim as to the possible dates since her election on which the Applicant's disqualification as a result of the 2003 traffic conviction could arise. The amended points of cross-claim identified possible dates as the date of her election (22 May 2007), the date of her application to the Registrar (10 March 2008), the date of the Registrar's decision (19 May 2008), the date of this Court's decision to reject her challenge to the validity of the Registrar's decision (4 May 2009) or the future date when declaratory relief is granted either by this Court, the ADT or any other court or tribunal. The NSWALC does not press any of these dates as the relevant date of disqualification as it argues it is not necessary that a specific date of disqualification be identified. I required amendments of this nature in Laurie No 2 in large part because I then understood, perhaps incorrectly, that the Applicant was arguing that the relevant date of disqualification was material in light of the fact that the period of disqualification under s 132(1)(c) expired on 10 March 2008. The Applicant has not pressed that argument in this part of these proceedings.
70 The Applicant's counsel has accepted, sensibly in my view, that disqualification under s 133(e) can still arise after the time period specified in s 132(1)(c) has expired. For the lengthy reasons given by the NSWALC at par 24-28 (possibly in anticipation of a submission that has not ultimately been put by the Applicant), the purpose of the Act would be undermined if the relevant activity or event specified in s 132(1) which gave rise to disqualification had expired by the time the matter came before the ADT, for example, so that the argument could be made that the relevant activity was no longer continuing. This was similar in broad terms to the circumstances in Lane v Atkin concerning disqualification of a local shire councillor due to the existence of pecuniary interests on his part. Such pecuniary interests rendered the councillor disqualified from the office of councillor pursuant to s 30 of the now repealed Local Government Act 1919. Section 35 provided that the election of a person disqualified from office created an extraordinary vacancy which, pursuant to s 34, resulted in the office becoming vacant. These provisions were the predecessor to s 329 of the Local Government Act 1993, considered at par 78.
71 In this case, the disqualification was confirmed by the decision of the Registrar on 19 May 2008. The Applicant's counsel argued that the Registrar's decision does not affect the fact of disqualification which is unaffected and not confirmed or renewed by the Registrar's decision. Since the decision of the Registrar under s 132(1)(c) is that an offence ought not be ignored I agree with the Applicant that the effect of the decision is not to confirm or renew the disqualification and the decision does not therefore change the timing of the disqualification. If the Registrar's decision does not affect the timing of disqualification that date will be when the Applicant became elected because at that point the conditions for disqualification under s 132(2) crystallised and she became disqualified from holding office as a councillor under s 133(e).
72 That conclusion is not at odds with my finding in Laurie No 1 that the Applicant did not become immediately disqualified on taking office after her election. That finding was directed to the NSWALC argument in issue 2 at that stage to the effect that s 133(e) operated automatically and the Applicant became disqualified immediately on being elected. I rejected that argument for the reasons given in Laurie No 1 at [149] - [151]. Consideration of issues moved on and I then determined that the Registrar's decision is valid so that the Applicant's disqualification under s 132(1)(c) stands. There is no inconsistency with Laurie No 1 in holding now that the disqualification occurred from when the Applicant took office as a councillor on 18 May 2007. Section 133(e) applies so that the Applicant became disqualified from holding office as a councillor on her election.
(iii) timing of casual vacancy
73 The Applicant's counsel argued that the Applicant's position as a councillor has not become vacant. Firstly, because that is a matter for the ADT to determine not this Court, an issue I effectively dealt with when I held this Court has jurisdiction to grant the relief sought by the amended cross-claim. Secondly, the vacancy cannot arise when the Court declares her position is vacant because such a declaration does not have the effect of removing her from office (which issue is addressed below). Thirdly, it cannot be when she was elected, as this is contrary to what was held in Laurie No 1 at [151]. I have dealt with the issue in the previous paragraph in relation to when the Applicant became disqualified and the role of the Registrar's decision in this respect. Fourthly, it cannot be when the Registrar's decision was made or was upheld by the Court as that misconstrues the Registrar's role which is the power to deem the disqualification did not happen for the purposes of s 132(1)(c). I have also considered that issue in the previous paragraph in the context of when the disqualification occurs. Fifthly and alternatively, the Applicant's position is not vacated until her appeal rights against the Registrar are exhausted. As I have now determined that the Registrar's decision should stand, arguably that has occurred. The Applicant has raised separately the issue of what happens if this Court makes a declaration and the Applicant wishes to appeal and I consider that below.
74 The submissions of the Applicant concerning when her position becomes vacant appear to be based on the assumption that once she becomes disqualified under s 133(e) her position is vacant. I have considered above when the Applicant became disqualified, namely after her election as a councillor. When the position of a councillor becomes vacant will depend on the circumstances which arise under s 133(e). Whether the timing of a casual vacancy in the position of a councillor under s 133(e) occurs at the same time as the disqualification will depend on whether an application has to be made to the ADT for an order declaring the position vacant. As I noted in Laurie No 1 at [150] if a person resigns having accepted that they are disqualified that action comes under s 133(d) and the casual vacancy occurs at that time without further action being necessary. Section 135 provides for the making of an order declaring a vacancy by the ADT suggesting that the casual vacancy can arise separately from the timing of the disqualification. Subject to consideration of whether the Court has power to issue a declaration which has the effect of removing the Applicant from her position as a councillor, for the purposes of these proceedings the date the casual vacancy arises is the date the Court declares the position is vacant, similarly to what would have occurred had the matter gone to the ADT.
Whether power to make declaratory order or declaration
(i) declaratory order versus declaration
75 As s 133(e) applies to the Applicant, the next issue to determine is whether the Court has power to make a declaration that the Applicant's position as a councillor is subject to a casual vacancy as contained in prayer 6A. Alternatively the issue could be expressed as to whether the Court's declaration of a casual vacancy has the same effect as an order declaring a position vacant under s 135 of the ALR Act.
76 The Applicant argues there is a difference between a declaration of a casual vacancy and an order declaring a casual vacancy and this Court cannot make the latter kind of order, only the ADT can. The NSWALC argues there is no difference and the Court can make a declaration, the legal effect of which is that the Applicant is removed from her position as councillor.