(c) in failing to hold that the appellant was not validly elected as a councillor.
24 The appellant did not oppose the extension of time within which to file the cross-appeal. However, the challenge to the validity of the election gave rise to an application from the Attorney-General seeking to have the Electoral Commissioner and the Returning Officer joined as parties and, in order to avoid any question as to whether they were properly able to participate in the proceedings, an order joining the Attorney to allow him to be the active participant. No party opposed those orders and they were made by consent. Further written submissions were made by each of the active parties, the last being filed on 9 July 2010. (The Electoral Commissioner and the Returning Officer filed submitting appearances.)
25 In respect of the substance of the cross-appeal, both the appellant and the Attorney sought to uphold the validity of the appellant's election. It is convenient to turn immediately to that issue, which will turn on the proper construction of the Land Rights Act and determine the correctness or otherwise of the findings and orders made by the primary judge.
Validity of election of disqualified person
(a) general principles and issues raised
26 Any elected body must have rules identifying the qualifications of electors and the qualifications of those entitled to be elected. Further, there must be rules providing for nomination of candidates and for the conduct of the election. Frequently rules governing qualification (both for electors and candidates) establish broad categories (such as citizens, residents of an area or property holders within an area), with exceptions identified as specific grounds of disqualification (such as being a serving prisoner, in the case of an elector, or having been convicted of a non-trivial offence, in the case of a candidate). Where a person is not qualified as an elector, one may expect that his or her participation will not constitute a valid vote. With respect to a candidate who is not qualified to hold office, one might expect that successful participation in an election will, nevertheless, not give rise to the status of office-holder. Further, a person who has been validly elected may be disqualified by events or conduct occurring after election. In that case, one may expect that the office occupied by the person will fall vacant, either automatically, or through the ruling of an appropriate body.
27 Such broad statements of principle will not, of course, determine the outcome in the case of a particular dispute: that will require reference to the statutory scheme provided for the particular body. Thus, in the present case, the appellant placed emphasis upon four specific aspects of the Land Rights Act to contend that a pre-existing disqualification from holding office did not preclude her validly standing as candidate and being elected. First, s 132(1) identified circumstances in which a person "is disqualified from holding office as a councillor of" the State Land Council. The provision did not, she correctly submitted, expressly refer to disqualification from standing for such office.
28 Secondly, she noted that, in relation to membership of the Board of a Local Aboriginal Land Council, a person who is disqualified from holding office "is not qualified to stand and be elected as a Board member": s 63(2). That language, she submitted, was to be contrasted with s 121 which states that a person is "not qualified to stand for election, or to be elected, as a councillor representing a Region unless the person is a voting member of a Local Aboriginal Land Council the area of which is within the Region": s 121(4). Section 121 could have included, but did not, express reference to disqualification under s 132(1).
29 Thirdly, she noted that the exclusive mechanism for challenging the validity of an election for a councillor was by an application to the Land and Environment Court made within 28 days of the declaration of the poll, "and not otherwise", pursuant to s 125 of the Land Rights Act. That course not having been taken within the time prescribed, the validity of her election was, she contended, immune from challenge.
30 Fourthly, the appellant submitted that her construction must be correct because there was no mechanism in the Land Rights Act for remedying the vacancy caused by an invalid election of a disqualified person. Each councillor was to be elected in the manner specified in Division 3 of Part 7 of the Land Rights Act: s 121(1). However, Division 3 only provided for elections "of all councillors", to be held during a specified period measured from "the previous election of all councillors": s 122. There was no provision for a "by-election", to fill a casual vacancy. Rather, the Land Rights Act provided for the filling of casual vacancies, in accordance with regulations: s 134. (Regulations made provision for appointment by the Minister: Aboriginal Land Rights Regulation 2002 (NSW) ("the Regulation"), cl 84.) However, at least in the case of disqualification, she argued that the reference to a "casual vacancy" reflects the terms of s 133, providing that a councillor vacates office if the person "becomes disqualified from holding office as a councillor": s 133(e). That situation, the appellant contended, did not apply to her, because she had been disqualified prior to her election.
(b) jurisdiction of Land and Environment Court
31 Dealing first with the third issue raised by the appellant, s 125 of the Land Rights Act, so far as relevant, provides:
" 125 Method of disputing elections and returns
(1) The validity of an election for a councillor to represent a Region, or of any return or statement showing the voting in any such election, may be disputed by an application to the Court, and not otherwise.
(2) Any person may make an application to the Court under this section within 28 days after the returning officer has publicly declared the result of the election that is the subject of the application.
(3) In determining an application under this section, the Court has the same powers as are conferred by section 161 of the Parliamentary Electorates and Elections Act 1912 on the Court of Disputed Returns."
32 It is apparent that s 125 was intended to deal specifically with questions arising out of disputed elections, the Court being given the powers of a Court of Disputed Returns: s 125(3). By providing an exclusive mechanism for dealing with the "validity of an election" and "of any return or statement showing the voting in any such election" the Act did not demonstrate an intention to exclude other mechanisms by which questions of disqualification could be agitated. As explained in In Re Wood [1988] HCA 22; 167 CLR 145 at 164-165:
"A Senate election is not completed when an unqualified candidate is returned as elected. The return does not meet the exigency of the writ … because Senator Wood was incapable of filling the twelfth place. That is not to say that, putting to one side 'a mere abuse of the right of nomination or an obvious unreality' … the Electoral Officer who makes a return has authority himself to determine the qualifications of a candidate (who declares and maintains that he is duly qualified …) or to refuse to return the name of an otherwise successful candidate whose qualifications are in issue …. But the performance by the Electoral Officer of his ministerial functions in these respects does not determine the validity of the return or the efficacy of the election of an unqualified person to a vacant place in the Senate."
33 The appellant did not challenge the jurisdiction of the Court to make the declaration sought in the cross-claim, but the Attorney challenged the application of those principles to the power of the Land and Environment Court to make appropriate orders in its class 4 jurisdiction, as identified in s 20 of the Land and Environment Court Act 1979 (NSW) ("the LEC Act"). Pursuant to that provision, the Court has the following relevant jurisdiction:
"20 (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings:
(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,
(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,
(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function ….
…
(3) For the purposes of subsection (2), a planning or environmental law is:
(a) any of the following Acts or provisions:
Aboriginal Land Rights Act 1983 (other than Division 5 of Part 7);
…."
34 Subject to the last words in parenthesis, this language is apt to cover a determination as to the eligibility of Ms Laurie to exercise functions as a councillor of the State Land Council. This being a jurisdiction or power conferring provision, it would be inappropriate to read in any implied limitation, not appearing in the express words: The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421. On its face, the exclusion of Division 5 of Part 7 is irrelevant for two reasons. The first is that s 20(1)(dd) separately confers jurisdiction on the Court to hear and dispose of "proceedings under Division 5 of Part 7 of the Aboriginal Land Rights Act 1983". (In addition, sub-s (2A) conferred precisely the same jurisdiction.) Secondly, in its terms, Part 7, Div 5 is irrelevant, because it deals with "Community, land and business plans".
35 Counsel for the Attorney submitted that the reference to Part 7, Div 5 had resulted from the failure to amend the LEC Act in 2006 when the Land Rights Act was restructured. Prior to that date, Division 5 of Part 7 was concerned with disputed returns. Accordingly, the Attorney submitted, there was an "obvious typographical error" of the kind referred to by Spigelman CJ in R v Young [1999] NSWCA 166; 46 NSWLR 681 at [14] so that the correct response of the Court would be to read the reference to "Division 5" in s 20 of the LEC Act as a reference to "Division 3 (formerly Division 5)".
36 This submission cannot be accepted in its terms. Unlike the former Division 5, Division 3 of Part 7 is not limited to "disputed returns". It is headed "Councillors of NSW Aboriginal Land Council" and contains provisions which were formerly in Divisions 1, 2, 3, 4 and 5 of Part 7 (though not all of those provisions). Accordingly, what is required in order to give effect to the apparent failure to amend the LEC Act in 2006 is to isolate those provisions which were formerly contained in Division 5, and are now in Division 3, namely ss 125-128.
37 That approach would be consistent internally with the fact that the return on an election can only be disputed pursuant to the procedure provided in s 125 (and not otherwise) and that the decision of the Court in such a matter is not appellable pursuant to s 58 of the LEC Act: s 128. Assuming, without deciding, that such a reworking of s 20 of the LEC Act is appropriate (cf Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276 at [40]-[62] (Beazley JA), [78]-[83] (Giles JA) and [103]-[104] (in my judgment)), that does not affect the outcome of the argument. This is not a case involving a disputed return and the limitations on the right of review and appeal which would arise if it were, are inapplicable. It is appropriate to read sub-ss 20(2) and (3) as not applying to disputed returns: those provisions should not, however, be read down to exclude declarations and orders sought otherwise than by way of disputed return of an election.
38 One of the Attorney's submissions effectively supports such a conclusion. He accepted that proceedings of the kind now under consideration, to restrain Ms Laurie from acting as a councillor and to have the office declared vacant, could have been brought under s 70 of the Supreme Court Act 1970 (NSW). However, the LEC Act expressly provides that proceedings referred to in sub-s 20(2) "may not be commenced or entertained in the Supreme Court", thus giving the Land and Environment Court exclusive jurisdiction: the LEC Act, s 71. As the Land and Environment Court had exclusive power to determine such matters before 2006, the LEC Act cannot be construed, through a failure to amend in 2006, so as to remove a jurisdiction which it would otherwise have continued to exercise.
39 In accordance with this reasoning, and assuming that there is a court which has power to determine such matters (an issue addressed below), s 125 will not stand in the way of a declaration that Ms Laurie was not validly elected because she was, at the time of her election, unqualified. Furthermore, there is an inconsistency between the appellant's next argument (that her disqualification did not preclude her from standing for election) and the argument that her election could only be challenged on a disputed return. Accordingly, the arguments must be addressed as alternatives.
(c) grounds of disqualification as bar to election
40 The central issue of construction concerned the operation of ss 132 and 121(4) of the Land Rights Act. Ms Laurie's contention that the provision for disqualification from holding office, in s 132 did not extend to disqualification from standing for election (disqualification not being referred to in s 121(4)) was supported by the Attorney-General. However, that construction would tend to nullify the effect of the s 132. It is not clear how persons can be elected to and obtain an office which they are disqualified from holding, but presumably the argument accepts that there is a scintilla of time during which they hold the office before vacating it. Although the Land Rights Act provides that a councillor vacates office if he or she "becomes disqualified from holding office" (s 133(e)), that provision envisages that the person was at an earlier point in time the holder of the office and not disqualified. A reading of the statute which required that a person who became disqualified a week after election vacated his or her office, but that a person who was disqualified at the time of election was able to hold office, would border on the absurd.
41 The preferable (possibly the only reasonable) construction is that by identifying persons who were disqualified from holding office, s 132(1) was also identifying persons who are unable to stand for election. The alternative would render the election itself a solemn farce. The preferred construction is confirmed by the fact that the grounds include, as relevant in the present case, a conviction recorded within the last five years. Such a provision could only have sensible operation with respect to a person who had such a conviction in the past, and was then considering nominating as a candidate for election. There is nothing in s 132 to suggest that the status of disqualification is only engaged once a person enters the office of councillor.
42 The appellant's contrary argument may ultimately depend, not on the absence of any express reference to disqualification from standing for election in s 132(1), nor the absence of reference to disqualification in s 121(4) (dealing with disqualification from standing for election as a councillor), but the contrast of the latter with s 63, dealing with disqualification from standing for election as a Board member. Both ss 121 and 63 were introduced at the same time, by the 2006 Amendment Act. (Section 63 did not commence until 1 July 2007 and was not in operation at the time of the election: however, that does not render it irrelevant in construing the legislative scheme as enacted, of which it was a part: cf Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371; (2002) 125 FCR 89 at [60] (Beaumont J) and R v Mailes [2001] NSWCCA 155 at [108] where Spigelman CJ looked at the scheme of concurrently enacted legislation.)
43 Pursuant to s 62, each Local Aboriginal Land Council is provided with a Board to direct and control its affairs. Section 63 then provides:
" 63 Board members
(1) The Board members are to be elected at every second annual meeting of a Local Aboriginal Land Council.
(2) A person is not qualified to stand and be elected as a Board member of a Local Aboriginal Land Council:
(a) unless the person is a voting member of the Council, or
(b) if the person is suspended or disqualified from holding office as a Board member or is suspended or disqualified from membership of the Council."
44 Section 66, which provides grounds of disqualification from holding office as a Board member of a Local Aboriginal Land Council, is in the same form as, and contains many of the grounds found in, s 132(1) in relation to councillors of the State Land Council. While the difference in terminology between ss 63 and 121(4) is no doubt significant, it provides limited assistance in determining the operation of Part 7. Prior to the 2006 Amendment Act, Local Aboriginal Land Councils, provided for in Part 5 of the Land Rights Act, did not have Boards and therefore did not have provisions for election of Board members, nor, therefore, in respect of qualification and disqualification for election or holding office. Part 7, dealing with the State Land Council, thus predated the provisions in Part 5 now relied upon for comparative purposes. The origin of s 121(4) is to be found in s 27, inserted in the Land Rights Act by the Aboriginal Land Rights (Amendment) Act 1990 (NSW) ("the 1990 Amendment Act"). It later appeared as s 120 with the commencement of the Aboriginal Land Rights Amendment Act 2001 (NSW) ("the 2001 Amendment Act"). It reached its current form with the commencement of the 2006 Amendment Act, with minor stylistic changes, primarily deleting reference to "a Regional Aboriginal Land Council area" and replacing it with "a Region".
45 The first reference to disqualification from holding office appears to have come with the provisions relating to the disclosure of pecuniary interests, ss 56B and 56C, (inserted by the 1990 Amendment Act), together with Schedule 5, cl 3(h), which provided that the office of a councillor became vacant if the councillor were to be disqualified from holding office under s 56C. The 2001 Amendment Act extended the scope of the disqualification provision to include persons convicted of an offence under identified parts of the Crimes Act 1900, for a period of five years from the date of conviction, thus constituting a progenitor (then s 111) to the present s 132(1)(c). Section 132, in its current expanded form, was introduced by the 2006 Amendment Act.
46 This history may explain the absence of direct cross-referencing between ss 121 and 132. Section 121(4) predated provisions for disqualification. The first provision for disqualification identified circumstances (non-disclosure of pecuniary interests) which could only arise after obtaining office and therefore called for no change to the then equivalent of s 121(4). Subsequent expansions of the grounds of disqualification, so as to cover circumstances which might well pre-date election to office, were not accompanied, probably through inadvertence, to any amendment of s 121(4). This history does not support any clear inference that a ground of disqualification from holding office, which pre-dated the election to office, did not also invalidate the election. Prior to the enactment of s 63, common sense would have required a reading of the provisions relating to councillors precluding a person disqualified from holding office from standing for election. The inclusion of s 63, which makes such provision expressly in relation to membership of the Board of a Local Aboriginal Land Council, tends to confirm, rather than undermine, the strength of that inference. Accordingly, when understood in context, the Act read as a whole supports the construction for which the State Land Council contended and not that proffered by the appellant with the support of the Attorney-General. (The appellant's argument that there is no mechanism to address the result will be addressed below.)
47 Before leaving this central point of construction, it is desirable to address two further arguments put by the Attorney. First, he submitted that disqualification "from holding office" presupposed some existing status to which a person becomes disentitled, that being the status "engaged by the returning officer's public declaration". However, as already noted, it is not entirely clear how, and for how long, a person who is disqualified could hold office, or even have some inchoate 'entitlement' to hold office, pursuant to a declaration of the poll. More importantly, the statutory language is equally consistent with disqualification from obtaining office and disqualification from continuing in office. Such semantic niceties must turn on the subject matter and statutory context discussed above.
48 Secondly, the Attorney contended that the differential approach to qualifications in s 121(4) and disqualifications in s 132 was understandable because the qualification - namely being a voting member of a Local Land Council - was objectively clear and readily determined, whereas at least some of the grounds of disqualification were readily contestable. There are several answers to these propositions. The first is that the supposed difference in kind, requiring differential treatment, does not sit well with s 63, which expressly introduces the notion of disqualification as a basis for not being qualified to stand for office.
49 The second response is that the submission assumes that no dispute can arise as to whether or not a person is a "voting member" of a Local Aboriginal Land Council. The term "voting member" is defined to mean a member who has "voting rights" in relation to that Council: s 4. The term "voting rights" is defined to mean "the right of a member of the Council to vote in the elections held by, and on any matter to be decided by, the Council". No doubt membership of a Local Aboriginal Land Council is an objectively determined fact, depending on whether a person is listed on the membership roll: s 53. However, qualification for membership may depend upon whether the person is an "adult Aboriginal person who has a sufficient association with the area" and is accepted as having such: s 54(2A)(b). Some of these concepts are contestable, including identification as an "Aboriginal person": see, eg, Shaw v Wolf (1998) 83 FCR 113. In any event, contestability provides an uncertain test of statutory construction and not one which should be treated as carrying weight in the present circumstances.
50 I also agree with the reasoning of Handley AJA holding that the appellant has not at any time since the election held office as a councillor of the State Land Council.
(d) mechanism to resolve the present case
51 If the appellant does not hold office, an issue arises as to the proper mechanism (if any) to fill the vacancy on the State Land Council.
52 In the Court below, the State Land Council submitted that because Ms Laurie was disqualified from standing for election, there would either be a casual vacancy, to be filled in accordance with cl 84 of the Regulation, or an order for the recounting of votes cast at the 2007 election, or an order for a fresh election. Consistently with In Re Wood (at 168), it said that a casual vacancy arises under the Land Rights Act only where an office "becomes vacant" as a result of a supervening event, and not because the office had not been filled at the election. On that approach, no casual vacancy was created in this case. The State Land Council did not pursue a recount, because it cannot be known how electors would have voted, had Ms Laurie not been a candidate: see Sykes v Cleary [1992] HCA 60; 176 CLR 77; Connolly v Dickson [1992] NSWLEC 55; Lester v Ellis [1996] NSWLEC 245 (Pearlman J); Australian Electoral Commission v Wilson [2003] FCA 434 (Mansfield J). It followed, the State Land Council submitted, that the appropriate course would be to order a fresh election. The power to do so was not identified.
53 The appellant agreed that no casual vacancy arose. Her position in the Court below was that the only provision for elections was that contained in s 122. (Separate provisions for elections where an administrator has been appointed, at the conclusion of the administrator's term of office, were not relevant: s 226.) Section 122 provides only for an election for all positions on the Council. There is no statutory provision for a by-election. Accordingly, any challenge resulting in a vacancy following an election would only be dealt with by way of a disputed return and a recount, or by the filling of a casual vacancy. As neither of these possibilities was available, she argued that the conclusion as to the invalidity of her election must be erroneous.
54 It is necessary to assess the correctness of the view that no casual vacancy arose. Contrary to the position of the other parties, the Attorney submitted that there must be a casual vacancy, but one to which Ms Laurie may not be appointed. (Why the appellant was not eligible to be appointed was not explained, but may have derived from the assumed availability of another candidate, pursuant to cl 84(2) of the Regulation; cf cl 84 (3) at [60] below.)
55 Once it is accepted that the election of a disqualified person does not result in a person holding office, a construction of the legislation which provides a mechanism to ensure that the electors for a particular region are not disenfranchised when the true facts, and their legal effect, become known is to be preferred to one that does not. In other statutory regimes, the solution would be to hold a by-election. Under the Land Rights Act there is no express provision for a by-election. There is, however, a process available under s 134 where a vacancy arises during the course of a term of office. Section 134 reads as follows:
" 134 Casual vacancy
A person is to be appointed in accordance with the regulations to fill a casual vacancy in the office of a councillor for the remainder of the term of office."
56 The earliest provision in the Land Rights Act relating to the filling of a casual vacancy on the State Land Council appeared in Schedule 5, cl 4, introduced by the 1990 Amendment Act. Section 114, introduced by the 2001 Amendment Act, was in similar terms and is now s 134 (although the Regulation, cl 84, still refers to s 114).
57 The phrase "casual vacancy" in s 134 is not defined. Section 134 comes in Division 4 of Part 7, headed "Removal from office". In fact, the subject matter of Div 4 is somewhat more extensive: it deals with grounds for disqualification, vacancy in office, casual vacancy and orders made by the Administrative Decisions Tribunal declaring vacancies. That structure may suggest that the filling of a casual vacancy only arises where a councillor has vacated office in the course of his or her term, for a reason identified in s 133. Section 133 is in the following terms:
" 133 Vacancy in office
A person who is a councillor of the New South Wales Aboriginal Land Council vacates office if the person:
(a) dies, or
(b) is absent from 2 consecutive meetings of the Council …, or
(c) completes a term of office and is not re-elected, or
(d) resigns the office by instrument in writing addressed to the Council, or
(e) becomes disqualified from holding office as a councillor under this Act, or
(f) represents a Region the area of which is changed."
58 The paragraph of s 133 closest to the present circumstance is (e), which deals with a person who "becomes disqualified". However, because Ms Laurie was disqualified at the time of her purported election, she did not vacate office. If s 133 provides an exclusive list of circumstances in which a "casual vacancy" arises, for the purposes of s 134, s 134 will not operate in the present case. However, there is nothing except the order of the provisions which suggests that ss 133 and 134 should be read in this way. The purpose of s 133 is not to define the existence of a casual vacancy. For example, a person who, in the terms of s 133(c), "completes a term of office and is not re-elected" undoubtedly vacates his or her office, but that does not create a casual vacancy for the purposes of s 134. Further, s 133 is not an exclusive statement of the circumstances recognized by the Land Rights Act itself as creating a vacancy. Thus, declaration of the vacancy of an office under s 135 may constitute a casual vacancy for the purposes of s 134. Casual vacancies may also occur by operation of the Act. Thus, where an administrator is appointed to the State Land Council, the offices of all councillors become vacant: s 226(2). As will be seen below, the Regulation excludes them from the class of "casual vacancies" to be filled in accordance with s 134. These matters and the historical growth of the Land Rights Act, including at several stages the restructuring of the provisions, indicates that little weight should be given to any inference to be drawn from the order in which provisions appear.
59 A casual vacancy is generally understood as one which occurs within a period between elections. Section 133 identifies when a person "vacates office" but is directed to the status of the individual and not to the nature of the vacancy created. By contrast, s 134 depends upon identifying a "term of office", which has commenced, but not been completed. The office of councillor exists for each Region, as defined in s 120. In this case, the term of each councillor commenced on 30 May 2007: see [7] above. The fact that the vacancy in respect of the North Coast Region has occurred as a result of no qualified person being elected to that office, rather than a person who was properly elected having ceased to hold office is not critical; the result, in either case, is the same, namely a vacancy. Given that no election process is on foot in order to fill that office, the vacancy may properly be described as "casual", in the sense of being out of the ordinary scheme provided by the statute.
60 In these circumstances, s 134 is engaged and the provisions of cl 84 of the Regulation provide the solution to the current vacancy. That clause provides:
" 84 Casual vacancy to be filled
(1) A person is to be appointed in accordance with this clause to fill a casual vacancy in the office of a councillor representing a Region.
(2) The Minister is to appoint the person who, at the time of the count at which the councillor was declared elected, was the candidate for election with the second highest number of votes.
(3) If no person is available for appointment in accordance with subclause (2), the Minister is, after consulting with the New South Wales Aboriginal Land Council, to appoint a person who is qualified to be a candidate for election to the position (whether or not the person was a candidate for election).
(4) This clause does not apply to a casual vacancy in the office of a councillor caused by the operation of section 226 (2) of the Act (being a casual vacancy caused by the removal of all councillors from office after the appointment of an administrator to administer all of the functions of the New South Wales Aboriginal Land Council)."
61 The fact that the person appointed will hold office "for the remainder of the term of office" assumes that a term has commenced, but not been completed. That is apt to describe the present circumstances, because part of the term between elections has indeed passed.
62 Thus, provision in respect of a casual vacancy may be seen as an alternative to a by-election.
63 The form of the relief granted in other cases where the election of an unqualified person has resulted in an office being vacant provide no necessary assistance in resolving the present issue. Thus, neither In Re Wood, nor Sykes v Cleary, can assist in construing the Land Rights Act. Each involved the election of a disqualified person to a House of the Australian Parliament, pursuant to the Constitution and the Commonwealth Electoral Act 1918 (Cth). Section 15 of the Constitution, dealing with casual vacancies, differs from s 134; s 15 commences "[I]f the place of a senator becomes vacant before the expiration of his term of service…". More importantly, the High Court in those cases sat as the Court of Disputed Returns. As such, it had the jurisdiction and powers of the Senate. As the Court noted in In Re Wood at 158:
"It was not thought that the House [of Commons] lacked jurisdiction to determine that a new writ should be issued when a candidate who was disqualified was returned, or that its jurisdiction depended upon a determination by a judge that the election of the disqualified member was void. The traditional jurisdiction of the House of Commons to determine questions concerning the qualifications of its members and vacancies in the House was not superseded by the statutory jurisdiction conferred on the judges."
64 Their Honours continued at 160:
"Being conferred in the language of s 47 of the Constitution, there is no reason to think that the jurisdiction of the Court when a question is referred to it under Div 2 is more limited than the jurisdiction which might have been exercised by a House of the Parliament if it were determining the question referred under s 376 of the Act."
65 The questions referred under that section included the determination of the mechanism to fill the vacancy: In Re Wood at 157. There was no doubt that the Court of Disputed Returns had the power (as did the Senate) to resolve such a question. However, the Land and Environment Court in the present case was not sitting as a Court of Disputed Returns. Its powers must be determined by reference to the relevant legislation.
66 It is not possible as a matter of statutory construction to read cl 79, dealing with the situation where "a candidate dies after the close of nominations and before polling day" as applying to a candidate who was disqualified from standing for election. To apply that provision in the present circumstances could not be justified by reference to any legitimate principle of statutory interpretation: it requires speculation as to what the legislature might have done had it considered the problem, which is not the proper role of the Court: Taylor v Centennial Newstan, at [37] above.
67 There being a mechanism available to resolve the problem created by the ineffective election of a disqualified person, the appellant cannot call in aid the absence of such a mechanism to demonstrate that the premise is wrong. Accordingly, the preferred construction of the Act set out above should be accepted. The appellant, being a disqualified person prior to standing for election, was not an eligible candidate and was not able to hold the office of councillor of the State Land Council. The casual vacancy for the North Coast Region may be filled pursuant to cl 84 of the Regulation.
Conclusions and orders
68 It follows from the foregoing conclusion that the declaration made by the primary judge that the appellant was elected as a councillor of the State Land Council was erroneous and should be set aside. However, for the reasons given above and the further reasons given by Handley AJA, it is inappropriate to make any alternative declaration as to the election itself. The cross-appeal should be upheld.
69 The second declaration made by the primary judge, namely that there was a casual vacancy in respect of the office of councillor for the North Coast Region, was appropriate, though not on the basis adopted by her Honour. It should stand and the appeal should be dismissed.
70 The State Land Council sought a declaration that it was entitled to cease paying the appellant her remuneration and allowances as a councillor, to which she would otherwise be entitled pursuant to s 120(5) and (6) of the Land Rights Act. No submissions were addressed by any party to this relief and it would appear to flow consequentially from the conclusions reached above.
71 The State Land Council also sought a declaration that Ms Laurie "is not and has not been at any time since May 2007 a councillor for the North Coast Region of the New South Wales Aboriginal Land Council". It will be apparent from the reasoning of the Court that Ms Lawrie was not qualified at any time to hold office and the Land Council is entitled to a declaration in the terms sought. No issue was raised either by the cross-claim or the cross-appeal in respect of past payments.
72 A question arises as to the date from which the Court's orders should take effect. Although it did not declare that the appellant was disqualified from holding the office of councillor, the Land and Environment Court did declare that there was a casual vacancy in respect of the office: order 3, made on 19 October 2009. That order was said not to take effect until the date on which it was confirmed or an appeal against the order was dismissed. In the circumstances, it is appropriate that the orders of this Court take effect from the date on which judgment is delivered. That result will obtain in the absence of any order to other effect: Uniform Civil Procedure Rules 2005 (NSW), r 36.4.
73 These conclusions suggest that the joinder of the Electoral Commission and the Returning Officer were unnecessary steps, in the event. Their joinder was sought by the Attorney, in conjunction with his own joinder as a party. It is appropriate that each of those parties bear their own costs in this Court.
74 Ms Laurie has been unsuccessful in her appeal, but ultimately because the State Land Council has succeeded on its cross-appeal, on an issue not otherwise in dispute up to and including the hearing of the appeal. In these circumstances, the appeal must be dismissed, but with no order as to the costs of the parties to the appeal.
75 In its submissions on the cross-appeal, though not in the notice of cross-appeal itself, the State Land Council sought to reopen a question as to the costs of the Electoral Commissioner and the Returning Officer in the proceedings in the Land and Environment Court. No order was made by the Court in respect of those costs, but, having failed on two issues with respect to which the Commissioner and the Returning Officer had made submissions in opposition to the State Land Council's position, the State Land Council agreed to pay those costs. It does not now seek an order for costs against those parties, but merely an order that each party bear its own costs of those issues, which would result in a repayment of the costs already paid by the State Land Council. That position is sought to be justified on the basis that the issue on which the State Land Council has now been successful was by far the more significant issue; that even if the issues were of equal significance, each party would have had a degree of success, and that there was "no need" for those parties to make submissions on the legal issues to similar effect as those made by the appellant.
76 The last ground should be disregarded: it would have been a justification for the Land Council not to have paid the costs in the first place. Nor should the State Land Council be allowed, belatedly, to seek to reopen an agreement made below, in circumstances where the issue was not raised in the notice of cross-appeal, the parties were not joined to the cross-appeal, and when joined, they filed submitting appearances before the current application was raised. The Court should not intervene in respect of the costs paid below pursuant to an agreement.
77 There remains the question of costs with respect to the cross-appeal. As already noted, the State Land Council has been successful in that regard. However, it did not originally intend to cross-appeal and did so only belatedly when it became clear that the issues presented by the appeal might not allow for the Land Rights Act to be given effect, according to its proper construction. This involved a matter of public importance in respect of the administration of the Land Rights Act and the operation of the principal body corporate created under it, namely the State Land Council.
78 The State Land Council submitted that the appellant incurred no additional costs as a result of its late application to cross-appeal and, in the event that the cross-appeal were permitted, those costs would have been incurred in any event. That submission may be accepted, as far as it goes. However, it does not take into account the fact that there is likely to be an increase in cost (even if not easily quantifiable) resulting from the need to address the substance of the case in stages, including a significant part which did not arise until after the hearing of the appeal. Secondly, there is likely to have been some prejudice to the position of the appellant who, although she initiated the appeal process, proceeded to a disputed hearing in the belief that an important element of her claim, upheld in the Land and Environment Court, was not under challenge. Thirdly, although the appellant had a personal financial interest in maintaining her position as councillor, there were also matters of significant public interest involved in assessing her status. In the circumstances, it is appropriate that each party bear its own costs of the cross-appeal.
79 The orders made below are set out at [15] above. It is not intended to interfere with orders 3 and 4. The Court should make the following orders: