Lawton v Bidgerdii Aboriginal & Torres Strait Islanders Corporation Community Health Service Central Queensland Region

REASONS FOR JUDGMENT 1 These proceedings are brought by the applicant as the representative of a group the members of which are identified as: 'A group of identified Aboriginal and Torres Strait Islander persons who applied for membership in Bidgerdii Aboriginal and Torres Strait Islanders Corporation Community Health Services Central Queensland Region ("Bidgerdii") a corporation incorporated under the Aboriginal Councils and Associations Act 1976and as amended prior to 7 March 2003 and who are entitled to membership in the said Bidgerdii having complied with the constitution of the said Bidgerdii as existed prior to 7 March 2003.' 2 The respondent ('Bidgerdii') accepts, for the purpose of these proceedings, that a determination in the applicant's favour will apply to the other persons who applied for membership in Bidgerdii, and who are referred to in the affidavit material. 3 Bidgerdii is a community health association incorporated on 8 December 1994 under the legislation referred to in the application. The Rules of Bidgerdii at the time of the applications for membership in question included the following: '8.( 1) Membership of the Association shall be open to adult Aboriginal and Torres Strait Islander persons normally and permanently resident in: Rockhampton and the Central Queensland Region. 8.(2) The members of the Association shall be those Aboriginal and Torres Strait Islander persons who qualify for membership and who apply to the Committee and who pay an annual membership fee as prescribed by the Governing Committee of the Association. A register of members shall be kept by the Public Officer. 8.(3) All financial members shall be entitled to attend, speak and vote at general meetings of the Association and be eligible for appointment as members of the Committee or Office Bearers. 8.(4) A member shall cease to be a member: (a) if that member shall die; (b) if that member shall by notice in writing resign from membership; (c) if that member shall by a resolution passed by a majority of not less than three-quarters (3/4) of the members present at a general meeting, be expelled from the Association on the ground that a charge of conduct detrimental to the Association has been proved; (d) if the annual membership fee is not paid by 1st December of each year; or (e) if that member changes their address and fails to notify the organisation within three (3) months of that change . …'. 4 Pursuant to rule 14 the Public Officer of Bidgerdii was obliged to keep a register showing the name and address of each member and the date upon which they joined the Association. 5 The applicant, Ms Lawton, applied on 7 February 2003. On 12 February 2003 five further applications for membership of Bidgerdii were made. They included those of Ms Bray, Ms Tull, Ms Tabua and Ms Donald. On or before 14 February 2003 eighteen other applications were made. 6 It was alleged by the four persons mentioned above that they received a letter from Bidgerdii advising that their membership had been approved. In each case they said that they had mislaid the letter. Objection was taken to this evidence and in my view it is inadmissible. The allegation of acceptance is not made in the statement of claim and leave was not sought to amend to plead it. 7 By a letter dated 14 February 2003 the applicant had returned to her the membership fees 'for the 18 persons whose membership applications you delivered in bulk quantity on 18th February 2003'. Other persons who applied for membership were notified in July and August 2003 that: 'Given the large number of applications received in bulk quantity at this time, together with talk of an impending take over, the Governing Committee have decidednot to accept any Membership Applications lodged between 18th February 2003 (date majority of applications received) to 7th March 2003 (date of Special General Meeting of members called to discuss the issue of membership).' 8 Their membership fees were returned. Neither the applicant nor the other persons were admitted to membership of Bidgerdii. 9 On 4 April 2003 amendments to the rules of Bidgerdii were approved by the Delegate of the Registrar appointed under the Aboriginal Councils and Associations Act 1976 (Cth). Rule 8.(2) is now in these terms: '8.(2) The members of the Association shall be those Aboriginal and Torres Strait Islander persons who qualify for membership, who apply in writing to the Committee and whom the Committee decides to admit to membership. An annual membership fee as prescribed by the Governing Committee shall be paid each year. The Committee will issue membership forms to those persons approved by the Governing Committee to apply for membership. The Governing Committee may seek more information from applicants to assist members of the Committee in considering applications for membership. The Governing Committee's decision is final.' 10 The applicant's case is that the rules, and in particular rule 8, does not give the Committee of Bidgerdii power to reject applications for membership if persons fulfil the description required and attend to payment of any necessary fees. It is not suggested by the respondent that those requirements were not met by those who applied for membership. 11 The respondent submits that there must be a discretion to refuse because the objects of Bidgerdii have to be upheld. No particular object was however said to be in question in relation to these applications. Rule 7 provided: 7. The Association shall, subject to the provisions of the Act, have power to do all such lawful things as may seem to the Committee necessary to carry out the objects of the Association.' 12 The Committee is the Governing Committee, the members of which are elected, as referred to in rule 9. Rule 9.(13) provided: 'The Committee shall manage and control the affairs of the Association in accordance with these Rules and with the Act and for that purpose may exercise the powers of the Association as if they had been expressly conferred on the Committee by a General Meeting of the Association.' 13 The objects of the Association were stated to be as follows: '6. The principal objects for which the Association is established are: A. To identify and address the Health Issues of the Aboriginal and Torres Strait Islander people by providing counselling and rehabilitation services for those affected by substance abuse. B. Counselling and Guidance to Aboriginal and Torres Strait Islander people relocating from their indigenous surroundings to the city or specifically to Rockhampton to permanently reside. C. Counselling and Guidance to Aboriginal and Torres Strait Islander people newly discharged from Prison re: counselling against re-offending against substance abuse. D. Counselling and guidance to Aboriginal and Torres Strait Islander people providing direct and immediate relief as a result of misfortune, suffering, and destitution. E. To provide training, education and awareness to such Health issues. F. To monitor and evaluate Government Policy implications relating to areas of Aboriginal and Torres Strait Islanders Health. G. To undertake such activities to promote the physical, emotional, cultural and spiritual well being of the Aboriginal and Torres Strait Islander people. H. To promote counselling engendering mutual respect and understanding between Aboriginal and other Australians. I. To acquire, establish, maintain and control social and cultural development centres, and other projects as will further the social education, cultural and artistic welfare of Aboriginal and Torres Strait Islanders people. J. To promote, where appropriate, an awareness and understanding among Aboriginal and Torres Strait Islander people of their basic human and civil rights and responsibilities.' 14 It is not apparent how these objects would be cut across by the membership of persons who fulfil the requirements of rule 8.(1) and (2). The objects are to assist all such persons with respect to health related issues. There is no further, more limited, class identified in the rules. They contain no ground for exclusion from membership. 15 The respondent submitted that the Committee must have a right to prevent persons who might be likely to obstruct it in the pursuit of Bidgerdii's objectives. How the Committee was to be able to discern this was not gone into. The rules do not permit the Committee to form such an opinion and act upon it in connexion with membership in my view. They do however make provision for the expulsion of a member. 16 Rule 8.(4) makes provision for the circumstances in which membership shall cease. Paragraph (c) of the subrule provides for the expulsion of a member on the resolution of members at a general meeting 'on the ground that a charge of conduct detrimental to the Association has been proved'. This would suggest that it was not likely to have been intended that membership be refused in anticipation of proof of the charge. The respondent however submits that if there were no discretion to refuse membership an expelled person who applied for membership again would have to be accepted. I do not think that follows. Expulsion from the Association implies an inability to continue to be a member which could not be overcome by a fresh application, unless the resolution were rescinded. 17 The respondent relied upon the decision in Baker v The Liberal Party of Australia (SA Division) (1997) 68 SASR 366 where the plaintiff's application for membership was rejected. It was submitted for the plaintiff in that case that, on applying for membership and paying the necessary fee, a contract came into existence between her and the party, a contention which was rejected by Bollen J. His Honour found that the defendant acted in accordance with its Constitution in rejecting the application. The Constitution provided that membership commenced one month after receipt of an application unless the State Executive, acting upon the recommendation of a branch or of its own motion, declined to admit a person, which it could do without giving any reason. The State Executive did reject the plaintiff's application and that rejection was upheld. A similar power was provided to the Committee of a Club in Millar v Houghton Table Tennis and Sports Club Inc (2003) 225 LSJS 241. There the process was one of seeking 'acceptance by the Committee' which could refuse or reject membership. 18 The Bidgerdii rules contain no such provisions. That is no doubt the reason why the amendments which became effective in April 2003 were sought. In particular the mere fact of a person having to apply to the Committee of Bidgerdii does not provide the Committee with wider powers of refusal or rejection than are marked out by rule 8.(1) and (2). The method of application is simply the procedure to be followed. 19 In Woodford v Smith [1970] 1 WLR 806 the rules of a ratepayers' association provided that 'Any person who agrees with the objects of the association shall be eligible for membership' for an annual subscription. Megarry J held that the rules showed no power in the Committee to reject or suspend an application for membership unless the application was not in accordance with the rules. His Honour's observations (at 813-814) as to the operation of the rules are pertinent to some of the submissions made by the respondent here: '… I do not think that such a power can fairly be read as giving the committee a discretionary power to control the membership of the association by any process of election or by postponing the membership of those seeking to join the association. No doubt the committee might refuse to recognise as a member a person who claimed membership yet nevertheless lacked the necessary qualification, as, for instance, someone who openly proclaimed that he disagreed with the objects of the association, or was obviously not in a fit state to agree with anything. Mr. Hames [counsel for the defendants] forcefully attacked the concept of automatic membership as producing grotesque consequences. What, he asked, if a membership form was received from an infant, or from someone with the name Adolf Hitler? To this attack, it seems to be, there is more than one answer. First, the rules manifestly fail to achieve the summit of perfection, and may indeed work unsatisfactorily in some cases; but nobody would suggest that rules are not rules unless they work perfectly. Nor do I think that the prospect of imperfections in extreme cases is a sufficient reason for saying that the rules must be construed differently for all cases by inserting requirements which are not there. Secondly, I see no reason why some infants should not become members. An infant of 17 years might well be fully qualified for membership, whereas in the case of an infant of 5, the committee might properly refuse to recognise him as a member on the ground that he could not be said in any real sense to be in agreement with the objects of the association. As for Adolf Hitler, I see no reason why a gentleman should be disqualified from membership merely because he bears this, or, indeed, any other name. If, however, the committee had reason to believe that no application had in fact been made by anyone of this name, and that the completed membership form was no more than a sorry form of jest, then they would be justified in refusing to include Adolf Hitler among the list of members, on the ground that the membership form had not been completed in respect of any person who truly agreed with the objects of the association. A power in the committee to refuse to recognise as a member someone who has not complied with the rules as to membership seems to me very different from a power to refuse to recognise as members those against whom no suggestion has been made that they do not comply with the rules.' 20 The present rules are closer to the type considered in Woodford v Smith. There seems no reason to doubt that rules may constitute an offer to all persons who qualify under the eligibility rule to become members: Nurses Memorial Centre of South Australia Incorporated v Beaumont (1987) 44 SASR 454 at 467-468. In my view that is the effect of rule 8. It is not possible to read into it a discretion in the Committee to reject a person's application. 21 The approach taken by the first declaration sought, to 'deem' those who applied for membership to be members is not correct. I think it is preferable to cast the declaration in terms of the Committee's powers, or the lack of them. It follows that the Committee were wrong to refuse the applicant's and the other applications, but I do not think it will be necessary to order them to consider the applications as required by the rules, properly construed, nor to register those persons who are eligible. I will however grant liberty to apply. There will be a declaration that with respect to applications made prior to 4 April 2003 the Committee of the respondent did not have power to reject as a member any person who was eligible in accordance with Rule 8.(1) and (2), who paid the annual fee as required by subrule (2) and who was not the subject of a prior resolution of expulsion. 22 The respondent should pay the applicant's costs of the application. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.