Lester Ors V NSW Aboriginal Land Council and Ors [1999] NSWLEC 179

LEGISLATION CITED: Aboriginal Land Rights Act 1983

DATE OF JUDGMENT DELIVERY: 07/30/1999

APPLICANT: Mr T Robertson (Barrister) SOLICITORS: H Dean

LEGAL REPRESENTATIVES: RESPONDENT: Mr M Tobias (QC) WITH: Mr T S Hale (Barrister) SOLICITORS: Solari's Law Firm

A . INTRODUCTION 1-11 B. THE RELEVANT PRIMARY FACTS 12 C. THE RELEVANT STATUTORY PROVISIONS OF THE ALR ACT AND THEIR APPLICATION TO THE PRIMARY FACTS 13-53 D. CONCLUSIONS 54-55 IN THE LAND AND Matter No . 40123 of 1999 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 30 July 1999

OSWALD CRUSE As Chairperson of the New South Wales Aboriginal Land Council

On 29 June 1999, the Applicant's commenced class 4 proceedings claiming the following relief:

1. A declaration that the office of the Applicants Lester, Murray, Ritchie and Towney as Councillors of the First Respondent has not become vacant under clause 3(i) of Schedule 5 of the Aboriginal Land Rights Act 1983 (the Act) by reason of the following events: (a) the election of the said Applicants to the office of member of the Regional Council established under the Aboriginal and Torres Strait Island Commission Act 1989 (Commonwealth (the ATSIC Act); (b) the holding of that office by each of the said applicants; or (c) payment of such remuneration and allowances as the said applicants are entitled to received under s 118 of the ATSIC Act by reason of that office or the performance of the duties of that office.
2. A declaration that the Second Respondent had no power to: (a) declare vacant the office of the said Applicants; (b) exclude the said Applicants from meetings of the First Respondent; at the ordinary meeting of the First Respondent on 25 June, 1999 or at all.
3. A declaration that, in threatening and taking steps to remove the said Applicants from office and excluding the Applicants from the meetings and business of the First Respondent, the Second Respondent acted in breach of the Act and of the following duties arising under the Act: (a) his duty to ensure the successful functioning of the First Respondent and achievement of its objectives; (b) his duty to uphold the rules of the First Respondent; (c) his fiduciary duty to act in the best interests of the First Respondent including his duties to act impartially and not use the resources of the First Respondent in a way which: (i) unfairly caused detriment to the Applicants; and (ii) improperly discriminated against the Applicants.
4. An order prohibiting the Respondents from interfering with the exercise by the Applicants of the duties of their office as members of the First Respondent.

On the same day, Sheahan J made ex parte interlocutory orders in favour of the Applicants.

The next day, his Honour made the following order:

The following question be determined before all other questions in the proceedings:

Have the Applicants, or any of them, engaged in any paid employment during the term of their offices as Councillors of the first Respondent within the meaning of cl 3(i) of Schedule 5 of the Aboriginal Land Rights Act 1983?

His Honour gave directions and fixed that hearing of preliminary question for 9 July 1999.

On that day, the parties presented their respective cases, the Applicants contending for a negative answer to their preliminary question and the Respondents contending for an affirmative answer. I reserved my decision and granted leave for the Respondents to file a cross application in the proceedings. On 23 July 1999, the Respondents filed a cross application claiming a declaration

that the office of a Councillor of the NSW Aboriginal Land Council held by each of the applicants/cross respondents has become vacant.

It is to be noted that the preliminary question in seeking a determination whether any of the Applicants have engaged in any paid employment is far more wide ranging than is the factual ingredient in the declarations claimed by the Applicants. That factual ingredient entirely focuses on (i) the fact of the membership of each of the Applicants of a Regional Council established under the Commonwealth Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act) and (ii) the fact of payment of remuneration in respect of that membership.

The affidavit evidence adduced at the hearing of the preliminary question similarly focuses entirely on those facts. However, in the course of cross examination of one of the Applicants, Mr Ritchie, evidence was led of his involvement in a consulting practice conducted under a company structure of which he is director and shareholder, which company received a single fee of $8200 in June 1998.

The Respondents rely upon this evidence against Mr Ritchie as providing an independent ground for holding that he has relevantly "engaged in paid employment" within the meaning of cl 3(i) of Schedule 5 to the Aboriginal Land Rights Act (ALR Act).

I did not find this evidence to be either clear or satisfactory. It is foreign to the factual enquiry raised in the Applicant's class 4 proceedings. It is not supported by any corroborative evidence led by the Respondents. Rather, it is in the nature of an admission extracted in the course of cross-examination.

Having regard to the lack of clarity and cogency of the evidence, I am not satisfied that it provides a reliable basis for founding the judicial serious determination that Mr Ritchie's office under the ALR Act has become vacant on that account.

Accordingly, I confine my consideration to the undisputed facts concerning the membership of each of the Applicants of a Regional Council established under ATSIC Act at a time when each Applicant held (and holds) the office as a Councillor of the NSW Aboriginal Land Council (ALC).

There is no dispute concerning the primary facts which can be stated in summary fashion as follows: (i.) Each Applicant currently is a councillor of ALC. (ii.) Each Applicant (other than Mr Towney) is currently a part-time member of a Regional Council constituted under ATSIC Act. (iii.) Each Applicant (other than Mr Towney was, and is, concurrently a councillor of ALC and a part-time member of a Regional Council constituted under ATSIC Act. (iv.) Mr Towney was a part-time member of a Regional Council constituted by ATSIC Act from 20 May 1996 to 21 April 1997, during which period he was also a Councillor of ALC. (v.) The ALC is constituted by the ALR Act s 22(1) and consists of "full time Aboriginal Councillors: s 22(2). (vi.) Schedule 5 to the ALR Act contains provisions relating to councillors of the ALC - including cl 1 which prescribes the term of office; cl 2 which prescribes the entitlement to be paid remuneration and cl 3 which provides for vacancy in office. (vii.) A councillor of ALC is an "office holder" within the meaning of the Statutory and Other Officers Remuneration Act 1975 Pt 3 and the remuneration paid to such office holder in terms of the current determination pursuant to the Statutory and Other Officers Remuneration Act s 13 is $63270 per annum. (viii.) By s 118 of ATSIC Act, a member of a Regional Council constituted under that Act is entitled to remuneration and allowances in accordance with s 194 of that Act. (ix.) Section 194 of ATSIC provides that the holder of an office entitled under the Act to remuneration and allowances is to be paid such remuneration as is determined by the Remuneration Tribunal. (x.) Pursuant to the Remuneration Tribunal Act 1973, the Remuneration Tribunal has, from time to time, made determinations of remuneration and allowances to be paid to "part-time holders of public office" as defined in Remuneration Tribunal Act 1973, the current determination (being No 3 of 1999 dated March 1999) containing in Pt 5 "the rates for public office holders in the Aboriginal and Torres Strait Islander Commission and Torres Strait Regional Authority", such rates being $225 per diem fee and a travelling allowance payable in accordance with stipulated conditions. (xi.) Each of the Applicants, while holding the office of Councillor of ALC has received payments from ATSIC in respect of remuneration and travelling allowance payable to each of them as a part-time member of a Regional Council constituted under ATSIC Act. The amounts of remuneration and travelling allowance received by each of them is relatively small. For example, Mr Lester received $2585 in fees and $1250 in travelling allowance for the year 1996/97 and $3856 in fees and $310 in travelling allowances for the year 1997/98. Mr Murray received $4460 in fees and $1755 in travelling allowances for the year 1996/97 and $3801 in fees and $2170 in travelling allowance for the year 1997/98. Mr Ritchie received $940 in fees and $2685 in travelling allowance for the year 1996/7 and $1729 in fees and $1910 in travelling allowance for the year 1999/98. Mr Towney received 2751 in fees and for $1495 in travelling allowances for the year 1996/97.

C. THE RELEVANT STATUTORY PROVISIONS OF THE ALR ACT AND THEIR APPLICATION TO THE PRIMARY FACTS

Section 22(1) constitutes the ALC as a body corporate. Section 22(2) provides that the ALC is "to consist of full time Aboriginal councillors". Section 22(3) provides that each councillor is to be elected in the prescribed manner.

Section 22(4) provides that Schedule 5 has effect. Schedule 5 contains familiar provisions dealing with statutory office holders concerning tenure, remuneration etc.

Clause 3, which is headed "vacancy in office" provides as follows:

The office of a councillor becomes vacant if the councillor: (a) dies, or (b) resigns the office by instrument in writing addressed to the Council, or (c) ceases to be a member of a Local Aboriginal Land Council within the Regional Aboriginal Land Council area the councillor represents, or (d) is absent from duty for 30 days (whether or not consecutive days) in any period of 12 months, except on leave granted by the Council, or (e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (f) becomes a mentally incapacitated person, or (g) is convicted in New South Wales of an offence which is punishable by penal servitude or imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or (h) is disqualified from holding office under section 56C, or (i) engages in any paid employment outside the duties of his or her office, except with the consent of the Council.

In order to answer the preliminary question, it is first necessary to determine the true meaning of par (i) of cl 3. Although the parties' competing interpretations have focussed attention on the expression "engages in any paid employment", it is the whole compound expression that of course must be ultimately interpreted.

That compound expression involves at least three cumulative ingredients before a vacancy in the office of Councillor occurs:- (i.) engagement in any paid employment; (ii.) (that employment) being outside the duties of the office of a councillor; and (iii.) without the consent of the ALC.

It is the existence of that compound expression that exposes the incompleteness, if not inadequacy, of the parties' formulation of the preliminary question. Indeed, the question, literally construed, would encompass the payment of remuneration to a councillor in accordance with cl 2 of Schedule 5. Obviously, the question is intended to be directed to other "paid employment" or to adopt the express words of par (i) paid employment that is "outside the duties of his or her office". Obviously, that ingredient must be factored into the preliminary question in order to render it meaningful.

Additionally, the ingredient of "lack of consent of the ALC" is not factored into the preliminary question. This obviously means that the determination of the preliminary question is simply not capable of providing a conclusion, as a matter of fact, whether a vacancy has occurred in the office of Councillor held by each of the Applicants.

The question of the true meaning of the expression 'except with the consent of the Council" must be established as an essential part of the elucidation of the true meaning of the entire compound expression contained in cl 3(i). For example, does the reference to "consent" in the exception clause include both an express and an implied consent (or a consent by estoppel) and does it include both a prospective and retrospective consent? None of these important questions was debated on the hearing of the preliminary question.

In these circumstances, I think that I must, in the interests of efficiency and fairness, reformulate the preliminary question as follows: whether in the case of each of the Applicants, in their respective capacities as councillors of ALC - (i) in holding the office as a part-time member of a Regional Council constituted under ATSIC Act; and (ii) in receiving payments in respect of that office for remuneration and travelling allowance each Applicant was "engaging in any paid employment outside the duties of his office" within the meaning of cl 3(i) of Schedule 5 to the ALR Act.

I am conscious that this reformulation of the question still leaves out of account the question of " the consent of the Council ". However, since the meaning of that exception phrase was not debated and the affidavit evidence concerning that matter was not read, and because it may ultimately have a decisive impact on the outcome of these proceedings, I must reluctantly leave the question for another day.

This leaves for consideration, both (i) the meaning and (ii) application to the facts, of other two ingredients that I have identified, namely:- (i.) engagement in any paid employment; and (ii.) (that employment being) outside the duties of his office.

Surprisingly, little attention in the argument was given to the second mentioned element. However, it was dealt with in the evidence adduced by the Respondents. Thus, the vital question arises: What are the duties of office of a councillor of ALC?

The ALR Act does not directly provide an answer to this vital question. Rather, it provides a possible answer, albeit indirectly, by stipulating in s 23 the "functions" (defined by s 4(2) to include "a power, authority and duty") of the ALC. Since the ALC "consists of full time Aboriginal Councillors" (s 22(2)), it is perhaps, but a small step to conclude, that the duties of the office of a councillor essentially are related to the duties that are conferred as "functions" upon the ALC.

Although the ALR Act provides potential scope for a more specific statement of the relevant duties via (i) the Rules of the ALC referred to in s 24 and (ii) Rules of Conduct determined by the Minister pursuant to s 56A, the Court was informed that these opportunities have not been availed of.

Moreover, according to the evidence of the second Respondent, (in par 5 of his affidavit sworn July 1999)

Other than the requirement for Councillors of the First Respondent to attend meetings of the First Respondent there is no real control that is able to be exercised to ensure that the Councillors are acting in their capacity as a Councillor of the First Respondent on a full time basis. It is up to each individual Councillor to attend to their duties as a Councillor of the First Respondent.

Mr David Clark, the ALC's Treasurer, in par 12 of his affidavit sworn 7 July 1999 deposes to similar effect when he says:

Other than the requirement to attend meetings of the First Respondent the Councillors of the First Respondent are not required to attend the premises of the First Respondent for the purpose of performing their duties. It is up to the Councillors to undertake their duties as Councillors in the manner that they see fit.

This shadowy and amorphous nature of the duties of a councillor, in my opinion, provides a singularly unpromising basis upon which to found a conclusion that each of the Applicant's part-time membership of a Regional Council constituted under ATSIC is relevantly paid employment " outside the duties of his office ".

My doubts in this respect are only reinforced when I consider the hierarchy and relationships between the three levels of Aboriginal Land Councils established by the ALR Act, namely Local, Regional and State, especially having regard to the fact that s 22(3) declares that "each councillor is to be elected to represent a Regional Aboriginal Land Council area". (Such areas are constituted under s 14 of the ALR Act.)

In these circumstances, I would hold that included in the "duties of office" as a councillor of the ALC is the duty for each councillor "to represent his or her Regional Aboriginal Land Council area". This conclusion is primarily based upon the express terms of s 22(3) of the ALR, but is additionally supported, in my opinion, by the terms of s 23(1)(m), the relevant duty being imposed by s 22(3) either expressly or impliedly.

From this conclusion, is it not reasonable to infer that each of the Applicants who is a councillor of ALC representing a Regional Aboriginal Land Council area, is not furthering that representation by virtue of his part-time membership of a Regional Council constituted under ATSIC Act?

In this respect, it is to be noted that one of the express objects of ATSIC Act declared in s 3 is: (d) to ensure co-ordination in the formulation and implementation of policies affecting Aboriginal persons and Torres Strait Islanders by the Commonwealth, State, Territory and local governments, without detracting from the responsibilities of State, Territory and local governments to provide services to their Aboriginal and Torres Strait Islander residents.

Whereas there is no evidence of any precise coincidence in the geography of relevant Regional areas respectively constituted under the Commonwealth and State Aboriginal Acts in respect of which Regional areas the Applicants respectively hold office (as full-time councillors under ALR Act and part-time Council members under ATSIC Act) it is the Respondents who, in my opinion, carry the evidentiary burden in the present case (at least in respect of the determination of the present preliminary question) of showing that the holding of office as a part-time member of a Regional Council constituted by ATSIC Act is relevantly "outside the duties of the office" of each of the Applicants, as Councillor of ALC.

In my opinion, the Respondents have not discharged this evidentiary burden. Irrespective of the location of the evidentiary burden, I have not been satisfied on the evidence that the holding of that part-time office under ATSIC Act is relevantly "outside the duties" of each of the Applicants as a Councillor of ALC.

In so concluding, I have necessarily rejected the Respondents' curious argument that "the only control on the performance by a councillor of his full time duties and functions is that he should not engage in any paid employment outside the duties of his office".

I can well understand how the Respondents, faced with the reality (conceded in their own evidence) of a "duty" so amorphous as to be lacking in content, would seek to salvage the position by seeking to translate the prohibition on engaging in other paid employment into the content or "control" of that duty, but the attempt, in my respectful judgment, simply fails to provide a content to the duty. Unless the duties of office are known, how can it reasonably be said that each of the Applicant's part-time membership of a Regional Council constituted by ATSIC Act is "outside the duties of his office".

I have also rejected for similar reasons, the Respondents' allied submission that the duties, even if they lack content, nonetheless must be undertaken on a "full time basis" , and any call made upon the time of the councillor in the form of other paid employment, must necessarily fall within the statutory proscription.

This conclusion means that the preliminary question as reformulated, must be answered in the negative.

Notwithstanding this conclusion, and for completeness, I shall consider the meaning of the first ingredient "engages in paid employment" which occupied almost the entire focus of the parties' competing arguments.

Although there was much discussion during argument on the purpose of cl 3(i) of Schedule 5 in giving rise to a vacancy in the office of councillor of ALC, (the Applicants arguing that the purpose was to preserve the independence of Councillors from outside influences such as might arise if the councillors were in the position of an employee, and the Respondents arguing that the purpose was to ensure that full time Councillors who were appropriately remunerated as full time office holders were precluded from earning additional incomes from outside sources) further reflection and research has revealed a host of legislative precedents for such a disqualifying provision in the case of statutory office holders and in the case of public servants or Crown employees. As to the former see The Solicitor General Act 1969 s 2(5)(f); The Public Defenders Act 1969 s 3(6)(a); The Crown Advocate Act 1979 s 6(1)(f); The Crown Prosecutor's Act 1986 s 10; The Legal Services Commission Act 1979 s 20 (Schedule 4 cl 5(1)(c); the Motor Vehicle Repairs Act 1980 s 9 (Schedule 1 cl 10(1)(j)); the Consumer Claims Tribunal Act 1987 s 4(4) (Schedule 1 cl 6(1)(j).

As to the latter, see Public Sector Management Act 1988 s 80.

Sometimes the proscription on engaging in outside paid employment is expressed in absolute terms eg The Solicitor General Act and sometimes it is expressed subject to the express exception of consent being obtained (similar to the provision made in the ALR Act cl 3(i) of Schedule 5) eg Consumer Claims Tribunal Act.

Assisted by what is an almost conventional if not routine, long line of legislative precedent, I would hold that the clear purpose of the ALR Act cl 3(i) Schedule 5 is to forbid a councillor from engaging in paid employment outside his duties of office without the consent of the ALC.

This conventional restraint on statutory office holders and public servants is recognised in Macken, McCarry and Sappideen's "The Law of Employment" (4th ed 1997) at p 147 in the discussion of "Employees implied duties" under the subheading "Use of employees' spare time" where it is said:

Certain classes of employees are precluded from doing any other paid work outside their duties for their primary employer. Into this class will fall most government and semi-government employees who are regulated by statutory codes which frequently make provision to the above effect. Permission to do outside work can, however, often be obtained by such employees, at least in times where there is no high unemployment.

Once the clear purpose of cl 3(i) is established, I think it is almost inevitable that the Respondents' principal argument must be accepted in preference to the Applicants' competing argument, ie that the expression " engages in any paid employment " is an expression of ordinary English words carrying their ordinary meaning rather than the Applicants' competing argument that the expression should be confined to situations involving the strict master and servant relationship, carrying a technical meaning.

This aspect of the competing arguments was seen to be crucial to the outcome because the Respondents had conceded that part time membership of a Regional Council constituted by ATSIC Act did not create a master and servant relationship between each of the Applicants and the Regional Council or ATSIC. In my judgment, this concession was properly made, as a consideration of the relevant provisions of ATSIC Act makes it clear that part-time members of a Regional Council are office holders but not employees. It is unnecessary in the circumstances to recite the relevant provisions of the Act.

In so concluding, I can, with respect, do no better than simply adopt as entirely compelling the following relevant passages from the Respondents' written submissions: 9. The ordinary use of the word employment does not involve the limitation for which the applicants contend. Employer and employee are words which generally denote a contract of service and thus involves more limited concepts. The word employment involves more general notions eg self-employment. 10. The dictionary definition of employment includes: · that on which one is employed; work; occupation; business (Macquarie) · that on which (one) is employed; business, occupation; a commission (Shorter Oxford). 11. This is consistent with the way in which the word has been judicially defined. (a) Partridge v Mallandaine (1886) 18 QBD 276

I do not think that employment means only where one man is said to work by others to earn money; a man may employ himself so as to earn profits in may ways : per Denman J at 278; (b) Westall Richardson Ltd v Roulson (1954) 1 WLR 905

The case of Lecture League Ltd v London County Council 29 TLR 426, (1913) 108 LT 924, proves, if proof were needed, that the word employment is one of very wide significance. But the words employer and employee are much more restricted in their meanings. Thus, I may be said to employ my time or my talents without being in any proper sense an employer, and I may also be said to be employed in some pursuit or activity without being an employee: per Vaisey J at 909 (c) Commissioner of Taxation v White (1985) 7 FCR 566

The word employment is commonly used as an abstract noun, and it at first seemed to me to be wrong to regard it as confined in the present context to master and servant situations, or contracts of service. It has indeed been quite common to refer to a contractor as being employed : see for example Lecture league Ltd v London County Council (1913) 108 LT 924: per Fox J at 567 .

The word employment is not defined in the Act. It is a word of infinite and wide content. Its meaning must be taken from its context. Sometimes it may be used in the narrow sense of employment arising from the relation of master and servant. It may also mean a person's profession, occupation or vocation. It may encompass the business of a self-employed person. Each of these meanings is recognised b the dictionaries. The word is no stranger to the law reports. Different meanings have been ascribed to it by courts over many years in a variety of contexts: per Lockhart J at 570 (d) Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472

…the applicant stresses the irregular hours in which a priest performs his duties and the absence of a wage or salary in the ordinary sense of that term. However, as the definition of employment in the Oxford Dictionary (2nd Ed 1989) shows, the ordinary usage of that term includes a business or an occupation. In my view, the sense of the condition imposed in this case pursuant to s.6(6) of the Act is that the holder of the temporary entry permit is prohibited, without written permission from an authorised officer, from engaging in employment, not only in the sense of regular employment as a member of the general workforce, involving receipt of a wage or salary, but also in the sense of pursuit of any business or occupation … Further, in my view, to engage in one's regular occupation is to work, whether or not one's labour is in return for wage or salary in the ordinary sense: per Gummow J at 475-476. (e) Holloway v Gilport Pty Ltd (1995) 79 ACrimR 76

The ordinary meaning of the noun employment used in s.46 is the act of employing or the state of being employed. The verb employ is to engage or make use of the services of a person in return for money. It is quite naturally applicable to both a contract for services (the commission agent) and a contract of service (the employee or the servant). I see nothing ambiguous or doubtful in its meaning so as to require an interpretation that relates only to one or the other, and certainly nothing to require an interpretation that it relates to a contract of service: per Hunt CJ at 81.

Accordingly, I would interpret the first ingredient in cl 3(i) as meaning " being engaged in any employment, work, occupation or business for which one receives payment ".

Although I am entirely satisfied, for the reasons I have given, of the purpose and meaning of the expression "engages in any paid employment", there are two separate provisions of the ALR Act which do not appear to sit harmoniously with cl 3(i) of Schedule 5. I do not stay to elaborate on them. I simply draw attention to them.

These provisions are s 15(5) which provides that a member of a Regional Aboriginal Land Council shall be entitled to receive from the funds of the Council "such fees, allowances and expenses as the Council determines….." and s 56B(3) which expressly recognises that an "office holder" (including a councillor of ALC) may be a "member, or in the employment, of a company or other body, or a partner or in the employment of a person".

In my respectful opinion, these are matters that may require legislative clarification, just as the case suggests the need for legislative clarification of the nature and scope of the duties of office of a councillor of ALC.

So interpreted, I would hold on the established facts that each of the Applicants, by holding office as a part-time member of a Regional Council constituted by ATSIC Act and receiving remuneration for that office, was relevantly "engaged in paid employment" within the meaning of that expression in cl 3(i) of Schedule 5 to the ALR Act.

For the foregoing reasons, I would answer the preliminary question (as I have reformulated it) in the negative.

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