Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors - [2009] NSWLEC 58 - NSWLEC 2009 case summary — Zoe

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Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors

[2009] NSWLEC 58

Land and Environment Court (NSW)|2009-07-01|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2009-07-01

Before

Pain J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

The Applicant noted however the high threshold for setting aside a decision as unreasonable as described by Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 citing Wednesbury . 211 As stated in Peko-Wallsend by Mason J at 40-41: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). ...in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation , at pp.230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it… 212 A number of decisions have considered Wednesbury in determining whether a decision was unreasonable in the context of a particular case. In Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 Spigelman CJ (with whom Beazley and Tobias JJA agreed) stated at [129]: Perhaps the most appropriate formulation is whether the decision is 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds': Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165.

This formulation has since been quoted with approval in Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 617 (Bignold J at 193), Save Our Street Inc v Settree (2006) 149 LGERA 30 (Biscoe J at [29]), Cutelli v Wyong Shire Council [2007] NSWLEC 137 (Jagot J at [35]), Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274 (Pain J at [127]), Teoh v Hunters Hill Council [2008] NSWLEC 263 (Sheahan J at [12]). 213 I consider the submissions made by the Applicant amount to contesting the merits of the Registrar exercising his discretion under s 132(2). The test in Murrumbidgee Groundwater is not met on the facts in this matter. It is not a matter therefore which I can consider in judicial review proceedings. This ground is not proven on the evidence by the Applicant. (d) procedural fairness/apprehension of bias (APOC cl 35) 214 The Applicant argued firstly, she had been denied procedural fairness because (a) the Registrar failed to disclose to the Applicant the allegation that the driving offence was a second or subsequent offence for driving whilst disqualified (APOC cl 35(a)). Alternatively, the Registrar failed to disclose to the Applicant that he considered the issue of whether the driving offence was a second or subsequent offence for driving whilst disqualified was relevant and material to his decision (APOC cl 35(b)); (b) the Registrar failed to disclose to the Applicant the nature and content of the complaint to the NSWALC and his investigation into it (APOC cl 35(c)). Secondly, there was the appearance that the Registrar did not bring an unbiased mind to making the decision because of the nature of the complaint from the NSWALC, his investigation of it and his perception that he was required to or would bring an application to the ADT for an order declaring the Applicant's position vacant if he determined not to ignore the driving offence APOC cl 35(d)). Further he was interested in the matter for these reasons (APOC cl 35(e)). 215 Nearly all the events relied on by the Applicant in relation to procedural fairness (and apprehension of bias) are identified at length in the APOC in cl 21A-27 set out above and the parties' bundle of documents and can be summarised as follows. In January 2008 the Registrar received a complaint from the NSWALC asking him to investigate a possible breach of the ALR Act by the Applicant because of the existence of her driving offence (APOC cl 21A). On 25 January 2008 additional material was sent by the NSWALC to the Registrar (APOC cl 21B). On 29 January 2008 the Registrar wrote to the NSWALC stating that he would undertake further enquiries given the information about the Applicant's conviction disclosed in Maclean Local Court bench papers for the conviction in January 2008 (APOC cl 21C). The Registrar considered it was his role to determine whether the Applicant had been disqualified from holding office, despite s 165 conferring no such function on him. The Registrar wrote to the Applicant on 15 February 2008 saying he was investigating whether she was disqualified as a candidate and asked her to provide a statutory declaration setting out matters related to the driving offence. He also stated he would take action in the ADT to seek an order that her position as councillor be declared vacant (APOC cl 21D). This letter was copied to the NSWALC as he considered it arose from the complaint. 216 The Applicant admitted the driving conviction in March 2003, identified the circumstances and requested the Registrar ignore the driving conviction by letter dated 10 March 2008 (APOC cl 22, 23). The submissions put on her behalf by her counsel stated that if the Registrar proposed to consider other submissions from third parties the Applicant wanted the opportunity to address them. The Registrar wrote to the Applicant on 25 March 2008 (APOC cl 24) but did not refer to her record or subsequent offences or the contents of the complaint from the NSWALC. On 2 April 2008 the Registrar received documents from Maclean Local Court in relation to the driving offence. This included a certificate from the RTA stating the Applicant was disqualified from driving for one year after being convicted in January 2002 for driving whilst her licence was cancelled (which was not included in the attachments to the Applicant's submissions of 10 March 2008). This was not disclosed to the Applicant. Further submissions dated 13 April 2008 were made on behalf of the Applicant to the Registrar (detailed in APOC cl 25). By letter dated 19 May 2008 the Registrar told the Applicant he had determined not to ignore her driving offence for the purposes of s 132 of the ALR Act and that he would go to the ADT to seek a declaration unless she resigned (APOC cl 26). It was not the Registrar's function under s 165 of the ALR Act to apply to the ADT and he cannot do so as the Registrar. This was raised in a letter from the Applicant's solicitors to the Registrar dated 30 May 2008. 217 Between 11 and 17 June 2008 there were numerous communications between the NSWALC's principal legal officer and the Registrar. The Registrar told the NSWALC on 17 June 2008 that the Applicant was disqualified from holding office as a councillor and that it was a breach of the ALR Act for her to remain in office (APOC cl 26A-26E). The Registrar told the Minister of his views and obtained legal advice that he was not going to take any further action as her position was automatically vacant. Further reasons for the decision not to ignore the offence were provided by the Registrar to the Applicant dated 7 July 2008 (these reasons are detailed in the APOC cl 27, 28, 29).

[7]

222 All these matters meant that a fair minded lay observer might reasonably apprehend that the Registrar might not bring an impartial mind to the specific function he was required to perform under s 132(2) of the ALR Act; per Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344. 223 The Registrar has raised the defence of necessity by claiming that all the above roles must be fulfilled in order for him to carry out his functions under the Act. Necessity, which applies after a finding is made of a reasonable apprehension of bias, was described in the context of apprehended bias of a tribunal member by Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 89: The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. The defence of necessity requires that it was necessary for the Registrar to perform the roles he was performing. This is clearly not the case in respect to possibly bringing an application to the ADT. It was also not the case in respect of briefing the Minister or advising NSWALC. As far as breaches of the Act are concerned his functions in that regard are confined to those for which he could issue a compliance direction (s 235), and whether the Applicant should continue to hold office was not a matter within that power to issue directions because it was provided for elsewhere in the ALR Act; s 235(3)(b). The fact that the Registrar seems to have considered he had some sort of roving commission to advise and act on anything relating to the ALR Act despite the specific nature of the functions conferred on him by the ALR Act does not lead to the conclusion it was necessary he do all these things. The only thing he was required to do was exercise his function under s 132(2). Registrar's submissions (i) procedural fairness 224 The Registrar denied that the Applicant was not accorded procedural fairness. As a broad principle, stated in Kioa, a person about whom a decision is being made is entitled to be informed of and respond to adverse material under consideration by the decision-maker. In Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 Gaudron J at [97] observed: Of course, if a Minister rejects an application simply because he or she is not satisfied as to some or all of the information provided by an applicant, there will be no occasion for him or her to consider the exercise of his or her power to invite further submissions or further information. However, if he or she has regard to information other than that provided by the applicant, a question will arise whether procedural fairness requires that the powers conferred by ss 54(3) and 56(2) be exercised to permit the applicant to put submissions or provide further information. Inevitably, the answer to that question must depend on the nature of the claims made by the applicant and the information to which the Minister has had regard. (a) whether second or subsequent driving offence 225 That the 2003 driving conviction was a second or subsequent offence was obvious from the material contained in the Applicant's submissions made by her legal representative. The Applicant's evidence in these proceedings does not assert that she was unaware that the driving offence was her second or subsequent offence. The requirements of procedural fairness did not require the Registrar to disclose that fact to the Applicant. The Applicant's complaint must be viewed in light of the fact that she was asked to provide her consent to the Registrar to obtain a copy of her criminal and traffic offence history. She initially gave her consent and then withdrew it. The Registrar sought a statutory declaration from her attesting to the existence or absence of any disqualifying convictions, which she declined to provide. Her disclosure was made by way of an unsworn written submission from her legal representative. Her legal representative asserted that the offence of disqualified driving carries a maximum penalty for a first offence of driving whilst disqualified of 18 months. The submission positively asserted that the penalty applicable was that for a first offence. The fact that the local court records provided with her counsel's submissions showed that the disqualification period was two years suggests that the offence was a second or subsequent offence. There was further opportunity to rectify that submission before the Registrar made his decision. As the Applicant had legal advice, was the only person in possession or ought to have been in possession of her traffic offence history and relied only on unsworn statements, the claim of procedural fairness must fail. Further, the evidence shows that the Registrar relied on the information supplied by the Applicant and not any information he obtained separately on 2 April 2008.

[9]

(b) complaint by NSWALC 227 In relation to APOC cl 35(b), in order for the Applicant to succeed the Applicant must demonstrate that the nature and content of the complaint were relevant to the exercise of the Registrar's discretion. The view of the NSWALC as to whether the Applicant is a disqualified person is not relevant to the exercise of the Registrar's decision. The content of the complaint was not material which could be taken into account in the exercise of discretion under s 132(2) and was not taken into account. The material in the complaint raised issues that were irrelevant to the exercise to be undertaken under s 132(2). There was no obligation to disclose to the Applicant the nature and content of the complaint and his investigations into it as they were not relevant to the exercise of his discretion. (ii) apprehension of bias 228 The apprehension of bias alleged is based on the Registrar receiving and dealing with a complaint from the NSWALC and also undertaking an investigation into a possible breach of the ALR Act while also exercising his discretion under s 132(2) of that Act. The Applicant was told the complaint had been received in a letter from the Registrar dated 29 January 2008 and that the complaint concerned information within the police fact sheets which were before the Maclean Local Court for the Applicant's conviction on 15 January 2008. The Registrar considered that he should investigate the complaint under s 165(h) of the ALR Act. He stated that he was going to investigate the possibility that a disqualifying conviction was recorded on 11 March 2003 and sought the Applicant's consent to obtain her traffic offence record. She did not request a copy of the complaint. The investigation was completed when the Applicant's submissions sent by her legal representative made an unsworn admission as to the existence of the disqualifying offence. The complaint remained on foot until determination of the Applicant's request for a determination under s 132(2) had been finalised.

[13]

(a) whether second or subsequent offence 233 The first failure alleged is the non-disclosure of material adverse to the Applicant before making his decision, namely the finding of the Registrar that the 2003 driving conviction was for a second or subsequent offence. Consequently the Applicant argued she did not have the opportunity to respond as to whether that was correct and whether it affected the circumstances surrounding the triviality of the 2003 driving conviction the Registrar was considering. The Registrar referred to the 2003 driving conviction as a second and subsequent offence in par (e) of the letter of reasons dated 7 July 2008. His evidence is that he was able to deduce that fact from the local court bench sheet provided by the Applicant in relation to the 2003 conviction. That she was sentenced to a two year driving disqualification suggests the conviction was a second or subsequent conviction because a first offence is punishable by a maximum of 18 months disqualification. While he requested bench sheets from Maclean Local Court and received these in April 2008 which confirmed this view, he did not consider these as part of his determination under s 132(2). 234 The Registrar relied on Ex parte Miah in his submissions where Gaudron J held that when information other than from an applicant is considered by a decision-maker whether that information should be supplied to an applicant depends on the circumstances. This situation does not arise on the facts. The Registrar states that he relied only on the material supplied by the Applicant in making his determination and there is no material to contradict that. That he had also received information from the NSWALC and the Maclean Local Court did not have to be disclosed as he did not rely on it in order to satisfy procedural fairness requirements. 235 I agree with the Registrar's submissions that the whole of the interactions between him, the Applicant and her legal representatives need to be considered to determine if there was a denial of procedural fairness, as outlined above in par 225. The Registrar asked for the Applicant's permission to obtain her driving record which was ultimately not granted. He made his own inquiries and obtained material known to her given that it was her driving record. The Applicant has not sought to establish that the 2003 conviction was not a second or subsequent offence in these proceedings. The submission of her counsel in March 2008 concerning the 2003 driving conviction was apparently incorrect in asserting that the maximum penalty was disqualification from driving for 18 months. 236 When the lengthy communications between the parties and the reasons provided are read as a whole I agree with the Registrar's submission that it is not demonstrated by the Applicant that this issue was material to his determination under s 132(2). Rather the gravamen of the reasons deals with the offence itself, not that it was a second or subsequent offence. On one view the Registrar was recording accurately in his reasons dated 7 July 2008 the position of the Applicant in light of the fact that she received a two year suspension from driving for the 2003 conviction. 237 In relation to the Applicant's submission that the adverse material should have been disclosed, the Applicant submitted that the Registrar had a duty to investigate such matters relying on Hardiman. Hardiman concerned the carrying out of investigations by the Australian Broadcasting Tribunal (ABT) which had specific investigatory powers under its operating Act. It was held in a joint judgment of Gibbs, Stephen, Mason, Aicken and Wilson JJ that the tribunal had a duty to thoroughly investigate matters relevant to its inquiry and had failed to discharge that duty because it precluded itself from discharging the duty due to rulings made. That case considered a quite different statutory framework to that under the ALR Act which included specific powers conferred on the tribunal in question which the Registrar does not have. The Registrar's functions in s 132(2) of the ALR are not analogous to those of the ABT under the Broadcasting and Television Act 1942 (Cth). I do not agree with the Applicant's submissions on this point.

[17]

244 The application of the test in Ebner was considered in the Court of Appeal in McGovern v Ku-ring-gai Council (2008) 161 LGERA 170 in the context of a multi-member elected decision-making body, a local council. The test for apprehended bias applies to statutory decision-makers and is affected by the functions they are required to perform and the identity and nature of the decision-maker who is obliged to perform those functions. This requires a context specific approach, usually as part of a process of statutory interpretation and the judicial paradigm is not universally applicable (per Spigelman CJ at [2], [7], [10]). Similar findings were made by Basten JA at [71] and [75] referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Hayne J at [179]-[187] as an example of how different standards to those applying to judges will operate in relation to ministerial decision-making in that case, because of the need to take into account the particular role and functions of the decision-maker. 245 The cases referred to above were concerned largely with apprehension of bias based on whether there was likely to be an apprehension that the decision-maker had prejudged the matter which had to be determined. The circumstances raised in these proceedings as giving rise to an apprehension of bias are quite different from those cases. As identified by Basten JA in McGovern at [151] (with whom Spigelman CJ and Campbell JA concurred on this point), it is necessary to consider the particular statutory framework in which the decision-maker is operating in determining the considerations relevant to an allegation of apprehension of bias. 246 The Registrar's functions in s 165 relate, inter alia, to the registration of land claims, the maintenance of the Register of Aboriginal Land Claims and the Register of Aboriginal Owners and the making of recommendations to the Minister in relation to changes to area boundaries of local aboriginal land councils, inter alia. Under s 165(h) the Registrar is to investigate complaints regarding, inter alia, the non-disclosure of pecuniary interests, misbehaviour by councillors and Board members, inter alia, and breaches of the Act and the Regulation. Under s 165(h1) if the Minister so requests the Registrar is to provide information about the operations of an aboriginal land council. Other functions can be statutorily conferred on the Registrar under the Act, as has occurred in relation to s 132(2). Under s 165 there is no limitation in terms of the Registrar carrying out any of those functions simultaneously. The Registrar is empowered under s 235 to issue compliance directions at the request of any person or body to an aboriginal land council or an officer of a land council or a councillor requiring compliance with the Act or Regulation made under the Act. He cannot issue a direction if the matter constitutes an offence under the Act or the determination of the matter is provided for in another section of the Act (s 235(3)). There are no specific provisions in the Act or the Regulation for how the Registrar should carry out his functions under s 165, including the handling of complaints.

[18]

247 The Applicant argued that because the Registrar fulfilled other functions (par 221 identifies four, investigation of breaches of the Act, considering and advising NSWALC on possible breaches of the ALR Act and its complaint, potential prosecution of the Applicant in the ADT and briefing the Minister) at the same time as making a determination under s 132(2) a fair minded observer might reasonably apprehend that the Registrar might not bring an impartial mind to the exercise of his discretion. Additionally the investigation into whether the Applicant should be disqualified was not within his defined functions under the ALR Act. It was not one of his functions to determine if the Applicant should be disqualified as a councillor and pursued proceedings in the ADT. As a result of carrying out this activity allegedly as part of his functions he was interested in the determination he was required to make in relation to s 132(2). I infer the Applicant is seeking to argue that he might be perceived by a fair-minded observer as not acting dispassionately in the determination he made under s 132(2), so that an apprehension of bias arises. 248 Consistently with s 165(h) the Registrar has the function of investigating complaints about breaches of the Act and the Applicant's situation was drawn to his attention in the context of a complaint by the NSWALC about a possible breach of the Act. The driving offences first drawn to his attention by the NSWALC did not fall within s 132(1)(c). He commenced an investigation into the matter raised by the NSWALC of whether there was a breach by the Applicant of s 132 of the Act, the relevant code of conduct or misbehaviour provisions. He told the NSWALC by letter dated 29 January 2008 that he was continuing to investigate the matters raised concerning the Applicant's driving offence convictions. He wrote to the Applicant on 29 January 2008 advising her of the complaint. There was correspondence and telephone calls with the Applicant's legal adviser. In the letter dated 15 February 2008 from the Registrar to the Applicant he advised of his investigation into whether she was disqualified from holding office under s 132(1)(c) of the Act. He advised that he considered he had to determine whether there were convictions relevant to s 132(1)(c) and sought a statutory declaration about certain matters. If there were such a conviction he also asked if the Applicant wished him to consider exercising his discretion to ignore the convictions pursuant to s 132(2) of the Act and to provide him with any matters she wished to be taken into account in considering that matter. 249 The Applicant's response was in the form of written submissions from her counsel which advised there was one offence of which she was convicted which fell within s 132(1) of the Act. This appears to be the first time the Registrar became aware of the 2003 driving conviction. The Applicant requested the Registrar through her counsel's submissions dated 10 March 2008 to consider whether the 2003 driving conviction should be ignored for the purposes of s 132(1) of the Act. Submissions were made concerning the application of s 132 in similar terms to those made by the Applicant's counsel in these proceedings concerning the broad range of offences falling within s 132(1)(c), and the fact that many of these have no relationship to the fitness or ability of a councillor to carry out their functions. Submissions on the time since the offence and the triviality of the offence were also made.

[20]

251 Given that the complaint from the NSWALC raised issues concerning s 132 of the ALR Act, which deals with grounds for disqualification of councillors, the Registrar was investigating a matter that came within the scope of his functions under s 165(h), contrary to the Applicant's submission. The circumstances giving rise to a potential breach of the Act, the subject of his investigation, concerned whether there was a conviction to which s 132(1)(c) applied. Because of the timing of events this also involved considering the circumstances of the Applicant's election and the swearing of the incorrect statutory declaration by her in breach of cl 47(1)(c1) of the Regulation, there being no rectification of that failure under cl 47(4) before the close of nominations. His investigation of the breach of the Act was within the functions the Act required of him under s 165(h). 252 The Registrar's investigatory functions under s 165(h) are not limited in terms to those matters in which he can issue a compliance direction under s 235, contrary to the Applicant's submissions (par 223). There is no principle of statutory construction which suggests his functions under s 165(h) should be limited in light of s 235(1). This view is also supported by s 235(3) which states the circumstances when a direction is not to be issued. His investigative powers under s 165(h) include consideration of breaches of the Act. Under s 235(3)(a) he is not able to issue a compliance direction if a matter constitutes a breach of the Act. Further, under s 165(f) one of his functions is issuing compliance directions to specified persons. That function is separate from the investigative function under s 165(h). The Applicant's submission that the only role the Registrar had was to exercise his discretion in determining the matter under s 132(2) ignores the wide ranging function the Registrar has under s 165(h) of the Act. Further, there is nothing in the Act suggesting that the Registrar should not also brief the Minister when he considers it appropriate. He must brief the Minister if he receives a request for information from him or her (s 165(h1))

[24]

258 While the Registrar submitted there would have to be some evidence that the Registrar appeared to be predisposed to a particular outcome the "might/might" test of apprehension of bias does not require that level of proof to be established. In McGovern at first instance I held that apprehension of bias in the case of councillors on a elected council had to be firmly established and that the test was whether a fair minded observer would consider the decision-maker would not act impartially. This was criticised as setting too high a threshold by Spigelman CJ at [3] and Campbell JA at [236]. Basten JA did not so hold at [115]. Applying the lower threshold approved by the majority in McGovern, looking at the circumstances before the Registrar and aware of his functions under the Act, a fair minded lay observer would not reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of his functions under s 132(2). There is no apprehension of bias in these circumstances and the Applicant's challenge on this ground fails. 259 The Applicant is unsuccessful on the failure to accord procedural fairness and the apprehension of bias ground. Her challenge to the Registrar's determination not to ignore her 2003 driving conviction under s 132(2) is unsuccessful and that determination stands. Concluding remarks 260 The issues raised by the circumstances of this case are novel in the context of the ALR Act. I have determined that the Applicant was validly elected as a councillor by the returning officer (par 130) so that the issue arises of whether the orders she seeks in prayers 1 to 3 of her Class 4 application ought be made. I have also held that s 132 and 133(e) of the ALR Act apply to her present circumstances (par 135) so that the possibility of the declaration of vacancy of her position arises. I held in relation to issue 2 of the cross-claim (par 151) that the Applicant was not immediately disqualified on taking office. Section 22 of the Court Act states that the Court must grant all remedies to which the parties appear to be entitled so that as far as possible all matters in controversy between the parties can be completely and finally determined in order to avoid a multiplicity of proceedings.

Legislation Cited (8)

Broadcasting and Television Act 1942(Cth)

Electoral Act 1902(Cth)s 192

Electoral Act 1918(Cth)s 162, 163, 360, 376

Constitution Amendment Act 1958(Vic)s 73, 300

Parliamentary Electorates and Elections Act 1912(Cth)

Amendment Act 1958(Vic)

Parliamentary Electorates and Elections Act 1912(NSW)

Migration Act 1958(Cth)

Cases Cited (43)

CITATION : Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors [2009] NSWLEC 58 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494 Allen Allen & Hemsley v Australian Securities Commission (1992) 27 ALD 296 Arnold v Minister Administering the Water Management Act 2000 (2008) 163 LGERA 429 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Blundell v Vardon (1907) 4 CLR 1463 at 1513 Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 Burnum Burnum v Gandangara Local Aboriginal Land Council (1997) 93 LGERA 148 Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 48 FCR 280 Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576 Commonwealth v Baume (1905) 2 CLR 405 Connolly v Electoral Commissioner of New South Wales (1992) 76 LGRA 104 Cutelli v Wyong Shire Council [2007] NSWLEC 137 Darkingjung Pty Ltd v Darkingjung Aboriginal Land Council [2006] NSWSC 42 Dodd v Gandangara Local Aboriginal Land Council (1999) 106 LGERA 189 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 617 Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274 IW v City of Perth (1997) 191 CLR 1 In Re Wood (1988) 167 CLR 145 Kioa v West (1985) 159 CLR 550 Kruger v Commonwealth (1997) 190 CLR 1 CASES CITED: Lane v Atkin (1922) 30 CLR 437 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 Martin v Nicholson (1850) 1 Legge 618 McDonald v Keats [1981] 2 NSWLR 268 McGovern v Ku-ring-Gai Council (2008) 161 LGERA 170 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 Newcastle City Council v Caverstock Group Pty Ltd and Anor (2008) 163 LGERA 83 Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404 Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 Re Walsh [1971] VR 33 Save Our Street Inc v Settree and Another (2006) 149 LGERA 30 Scharer v State of New South Wales (2001) 53 NSWLR 299 Shergold v Tanner (2002) 209 CLR 126 Teoh v Hunters Hill Council [2008] NSWLEC 263 Yanner v Minister for Aboriginal and Torres Strait Islander Affairs (2001) 108 FCR 543

(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), Applicant/Cross-Defendant's submissions 50 The cross-claim disputes the validity of the Applicant's election and seeks orders for relief which render her election void. The Applicant (and the returning officer) disputed that the Court has jurisdiction to determine the first cross-claim pursuant to the Court's general powers in s 20 of the Court Act. The cross-claim does not assert a right under an environmental planning law. 51 The only basis on which the validity of an election can be disputed in the Court is as a court of disputed returns under s 125(1) of the ALR Act. That section confers exclusive jurisdiction on the Court and achieves finality in the declaration of an election result, see the unanimous judgment of the High Court in In Re Wood (1988) 167 CLR 145 at 160 and Dodd v Gandangara Local Aboriginal Land Council & Ors per Pearlman J at [56]. That exclusivity is conferred by s 124(2) and (3)(a) and the powers of the Court in s 125(3) of the ALR Act. Section 128(1) states that a decision of the Court under s 125 is final and conclusive and without right of appeal. There is a strict time frame for challenging an election under s 125(1) of 28 days from the date the returning officer publicly declared the result of the election. 52 Sections 20(1)(e) and (2) of the Court Act do not confer jurisdiction on the Court to hear the first cross-claim as it is inconsistent with s 125 of the ALR Act. That section was enacted after s 20 of the ALR Act and would render the temporal limitation ineffective. Further, s 20(1)(e) and (2) of the Court Act do not apply to disputes on the conduct of elections because such disputes are not in respect of a planning or environmental law as referred to in s 20 of the Court Act. 53 In National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 Kirby P (Mason CJ and Meagher JA concurred on this point) stated at 586 that this Court was a court of defined jurisdiction without an implied incidental power to deal with matters not otherwise falling into its statutorily defined jurisdiction. The cross-claim in relation to the Applicant/First Cross-Defendant seeks a declaration (prayer 4) that she is not and has never been a councillor. It is not a declaration of a right accruing to the NSWALC. Further support for limited jurisdiction of this Court is found in Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494 and Darkingjung Pty Ltd v Darkingjung Aboriginal Land Council [2006] NSWSC 42. There is no "right" in the ALR Act to have a particular kind of person elected. The right to have a properly run election is provided for in s 125, the court of disputed returns jurisdiction. 54 Only the matters in prayers 1, 2 and 3 of the Amended Statement of Cross-Claim concerning the exercise of functions of the returning officer could be construed as matters falling within s 20(2) of the Court Act. However, such functions can only be challenged under s 125 when the Courts sits as the court of disputed returns because the cross-claim is challenging steps in the election process (as per Dodd v Gandangara Local Aboriginal Land Council and McDonald v Keats) without a claim having been made pursuant to s 125, the returning officer's decision concerning the election are final. 55 The Applicant also made lengthy submissions that the Court Act is incorrect when it refers to Div 5 Pt 7 in s 20(3). Div 5 Pt 7 should be read as referring to s 125 in Div 3, inter alia.

NSWALC's submissions 60 In its oral submissions the NSWALC submitted the following: (i) The Applicant conceded that prayers 1 to 3 of the Amended Statement of Cross-Claim fall within s 20(2) of the Court Act. The same can be said about prayers 4 to 6A of the relief claimed. (ii) If the Applicant can pursue her claim for relief, which is not disputed, the NSWALC claim is the reverse to that claim and can also be pursued. There cannot be a right as the Applicant asserts without a duty and the NSWALC cross-claim asserts that duty. Prayer 4A of the cross-claim seeks an order that the NSWALC is entitled to cease paying the Applicant remuneration and allowances as a councillor as provided in s 120(5) and (6). That is directly responsive to one of the orders sought by the Applicant. (iii) Further the claim is ancillary to the issues raised before the Court and can be determined under s 16(1A) of the Court Act. This is confirmed by Scharer v State of New South Wales (2001) 53 NSWLR 299 per Stein JA at [51] (Hodgson JA concurring) in 2001 which refers to the incidental, accessory or auxiliary nature of the ancillary jurisdiction. (iv) The Court has considered these kinds of cases before without there being a dispute about jurisdiction, see Connolly v Electoral Commissioner of New South Wales (1992) 76 LGRA 104 per Pearlman J. It is accepted by the Applicant that that case does not meet the repealed jurisdiction point also raised. (v) The Applicant's submissions (par 55) based on the Court Act being in error in referring in s20(3) to Div 5 Pt 7 should not be accepted. It is inherently unlikely. Section 20(2) operates in any event even if s 20(3) did not. Further even if Div 5 Pt 7 should be read as referring to s 125 in Div 3, the NSWALC does not rely on those provisions but seeks to distinguish them. The NSWALC relies on s 132 and s 133 in Div 4. (I agree with these submissions and do not need to further consider this part of the Applicant's case.) 61 The written submissions stated as follows: the distinction between qualification of candidates for office and vacancy of electorates and disputed elections has been addressed historically by the courts in Australia; see French J in Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 at 449-454. The distinction has continued in legislation in various jurisdictions including the ALR Act. In Re Walsh [1971] VR 33 the full court of the Victorian Supreme Court held a person was not capable of being elected to the Legislative Council within the meaning of s 73 of the Constitution Amendment Act 1958 (Vic) as he had been previously convicted of a felony. French J referred to this decision approvingly in Blurton at 453. 62 The NSWALC submitted that qualification was a necessary condition to a valid election and had to be fulfilled by the candidate chosen. Disqualification is a correlative concept. 63 The issue of disputed returns, while broader, overlaps with that of qualification, see Blurton per French J at 453-4 and also by implication in In Re Wood at 162-4. A wide range of issues can be dealt with under the concept of disputed returns. When this Court sits as a court of disputed returns under s 125(3) of the ALR Act the Court has the same powers as conferred by s 161 of the Parliamentary Electorates and Elections Act and those powers are very wide. 64 In In Re Wood the High Court considered the overlap between the two areas of disputed returns and election qualifications and held that it did have jurisdiction to determine whether Senator Wood had been qualified to be elected and therefore whether his Senate position was vacant despite the time for making an application to the court in a capacity as a court of disputed returns having elapsed.

[2005] NSWLEC 617

(1997) 41 NSWLR 494

(2008) 163 LGERA 429

(1907) 4 CLR 1463

(1991) 29 FCR 442

(1997) 93 LGERA 148

(1947) 74 CLR 629

(1993) 48 FCR 280

(1994) 49 FCR 576

(1905) 2 CLR 405

(1999) 106 LGERA 189

(2000) 205 CLR 337

(2008) 160 LGERA 274

(1997) 191 CLR 1

(1988) 167 CLR 145

(1985) 159 CLR 550

(1997) 190 CLR 1

(1922) 30 CLR 437

(1990) 170 CLR 70

(2008) 161 LGERA 170

(1985) 162 CLR 24

(1996) 185 CLR 259

(1999) 197 CLR 611

(2001) 205 CLR 507

(2002) 76 ALJR 966

(2005) 138 LGERA 11

(1990) 20 NSWLR 573

(2008) 163 LGERA 83

(1994) 181 CLR 404

(1998) 194 CLR 355

(1980) 144 CLR 13

(2001) 206 CLR 57

(2006) 149 LGERA 30

(2001) 53 NSWLR 299

(2002) 209 CLR 126

(2001) 108 FCR 543

(2003) 77 ALJR 1165

[2008] NSWLEC 263

[2005] FCAFC 94

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