Molluso v Le

NCAT Occupational|2017-08-09

REASONS FOR DECISION

Polls for the election of councillors to the majority of local councils in New South Wales were held on 10 September 2016. One such poll was for the election of councillors to the Fairfield City Council (the Council). Each of the applicant and the respondent was elected to the Council as a consequence of that poll.
By an application filed in the Occupational Division of the Tribunal, Joe Molluso, the applicant, seeks an order pursuant to s 329 of the Local Government Act 1993 (NSW) that Dai Le, the respondent, be dismissed from civic office as a councillor. He also seeks an order that the respondent pay his costs of the present application.
Section 329 of the Local Government Act relevantly provides: 329 Can the holder of a civic office be dismissed? (1) Any person may apply to the Civil and Administrative Tribunal for an order that a person be dismissed from civic office. (2) On any such application, the Tribunal may order the dismissal of a person from civic office: (a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or (b) if the person is disqualified from holding civic office. (3) Proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be commenced more than 3 months after the date of the person's election or appointment to that office.

Statutory background to the claim

The legislative provisions to which we refer in these reasons are those provisions that were in force in the period between April and October 2016, being the period in which events relevant to these proceedings occurred. Some of those provisions have since been amended. The Parliamentary Electorates and Elections Act 1912 (NSW) to which we refer has since been repealed by the Electoral Act 2017 (NSW).
The local government area of the Council is divided into wards conformably with s 210 of the Local Government Act. Where the area of a council is so divided, the eligibility for enrolment as an elector is governed by s 266 of that Act. The section relevantly provides: 266 Who has the right to be enrolled as an elector? (1) A person who is entitled to vote at an election of members of the Legislative Assembly or an election of members of the Commonwealth House of Representatives is entitled to be enrolled as an elector for a ward if: (a) he or she is a resident of the ward, or (b) he or she is not a resident of the ward but is an owner of rateable land in the ward, or (c) he or she is an occupier, or rate paying lessee, of rateable land in a ward.
That section is of present relevance because the statutory qualification for civic office, as expressed in s 274 of the Local Government Act, is that the person "is entitled to be enrolled as an elector". The respondent sought election to the Cabravale Ward of the Council.
Section 269 of the Local Government Act is critical for present purposes. The section identifies the meaning to be given to the term "resident" as used in Ch 10, Pt 1 of the Act, being the Part in which s 266 is found. Section 269 provides: 269 Who is a "resident" for the purpose of this Part? (1) For the purposes of this Part, a person is a resident of a ward if: (a) the person is, within the meaning of the Parliamentary Electorates and Elections Act 1912, enrolled on the roll for an electoral district, and (b) the person's place of living as described on that roll is in the ward or (in the case of a person whose place in living is not described on that roll) the persons place of living is in the ward. (2) (Repealed) (3) In this section, place of living includes the place of residence to which a person temporarily residing elsewhere intends to return in order to continue living there. (Original emphasis.) For the purpose of ss 266 and 269, the respondent nominated premises at 42 Palmerston Road, Fairfield West (the Palmerston Road address) as her residential address.
Having regard to the manner in which the applicant framed his case, there is a further temporal constraint in the Local Government Act that is also of present relevance. That constraint is found in s 306(2), requiring that to be "duly nominated for election as a councillor for an area", the nominee "must be enrolled as an elector for the area…at the closing date for the election". The residential voting rolls for the poll in the Council's area closed on 1 August 2016.

The competing contentions of the parties

Against the statutory background just given, it is appropriate to identify the two bases upon which the applicant advances his fundamental contention as we have earlier described it. First, he submits that, contrary to the requirement of s 269(1) of the Local Government Act, the Respondent was not "properly" enrolled on the roll for a relevant electoral district within the meaning of the Parliamentary Electorates and Elections Act (the State Elections Act). Relevantly, s 22(1) of the latter Act entitled a person to be enrolled for a district if "the person lives at an address in that district and the person has lived at that address for at least one month before the enrolment." According to a confirmation of enrolment email sent to the respondent on 18 May 2016 by the Australian Electoral Commission, she was enrolled at the Palmerston Road address on 12 May 2016. The applicant contends that the respondent had not lived at that address for one month prior to the latter date.
The second basis upon which the applicant contends "irregularity" in the election of the respondent arises from the provisions of s 269(1)(b) of the Local Government Act. While he accepts that the Palmerston Road address is within the Cabravale Ward, he contends that it did not identify what was, in fact, her "place of living" as at 1 August 2016, being the closing date for the election.
The respondent contends that the entry of her address on the electoral roll was regular in that she had resided at the Palmerston Road address for at least one month prior to the registration of her change of enrolment with the Australian Electoral Commission. Further, she contends that even if her enrolment on the electoral roll at that time was not made conformably with s 22(1)(b) of the State Elections Act, in that she had not resided at the address for at least one month before her enrolment, that does not constitute an "irregularity" within the meaning of s 329 of the Local Government Act.
In response to the second basis upon which the applicant founds his case, the respondent says that the Palmerston Road address continued to be her "place of living" and thus she was entitled to be enrolled as an elector as at 1 August 2016. As she was then enrolled as an elector for the area and was otherwise qualified for civic office in accordance with s 274, she was duly nominated as a councillor within the meaning of s 306(2) of the Local Government Act. Further, as the Palmerston Road address was the address entered on the State electoral roll, that entry satisfied the requirement of s 269 of the Local Government Act.
Finally, in response to each of the applicant's bases of claim, the respondent contends that the proceedings are barred by s 329(3) of the Local Government Act. The respondent submits that she was "elected" either on 10 September 2016 when the poll was conducted or on 16 September when the counting of votes by the body managing the election determined that she was "elected" as a councillor for the Cabravale Ward. As the application commencing the present proceedings was not filed until 20 December 2016, this occurred more than three months after the date of the respondent's election to the Council. The applicant takes issue with that contention.
The issues identified by the parties raise matters of some legal complexity pertaining to the construction of relevant statutory provisions as well as issues of fact that, subject to the determination we make upon the legal issues, will need to be resolved. However, before addressing the issues, it is necessary to identify those facts about which there is no serious controversy and which provide a relevant background both to the legal issues raised and to the determination of those facts that are in dispute.

Background

Both the applicant and the respondent were members of the Council prior to the 2016 election. The applicant was first elected in 1995 and had served four terms as a councillor prior to the 2016 election. The respondent was first elected to the Council in September 2012.
Shortly after her arrival in Australia in 1979 aged 11, the respondent lived with her mother in Bossley Park, a suburb within the Fairfield local government area. In 1992 she married Markus Lambert. Following her marriage to Mr Lambert, she moved with him to a house in Dulwich Hill. The following year she purchased, with her husband, a home in Garnet Street, Dulwich Hill (the Dulwich Hill property). Dulwich Hill is not within the local government area of Fairfield.
In 2005, the respondent and Mr Lambert separated. Following their separation, the respondent moved with her then 2 year old son to her mother's house in Bossley Park. Two years later she was divorced from Mr Lambert and subsequently transferred her interest as a joint tenant in the Dulwich Hill property to Mr Lambert. That transfer was made to comply with an order of the Family Court of Australia.
In 2008, the respondent returned with her son to live with Mr Lambert at the Dulwich Hill property. Subsequently she was entered on the Council's electoral roll as a non-resident. It was by reason of her enrolment as a non-resident that she successfully sought election to the Council in September 2012.
In about October 2013, the respondent was responsible for establishing a not for profit organisation named the "Diverse Australian Women's Network" and given the acronym 'DAWN'. That entity was registered as a charity. Its stated purpose was "to promote and advocate for culturally diverse leadership by women within mainstream institutions". The initial focus of its activities was the conduct of events and participation "in public forum discussions within the Council's local government area". Many of DAWN's initial members were drawn from that area. The respondent was appointed as the manager of that charity with an office address in Fairfield at that time.
In late 2014 the respondent again separated from Mr Lambert. She returned to live with her mother who was then living in Mt Pritchard, also a suburb within the Fairfield local government area. At that time, she was performing her duties as a councillor of the Council as well as continuing her role as manager of DAWN.
Six months later, the respondent returned to live with Mr Lambert at the Dulwich Hill property. However, that relationship did not last, as they again separated in early April 2016. Having informed friends of that separation, one such friend, who was also closely associated with the activities of DAWN, invited the respondent to "stay with her" at the Palmerston Road property.
To this point in the narrative the respondent's familial movements, addresses and general activity are not controversial. It is the respondent's place of living from early April 2016 that is in controversy. The evolution of that controversy is the subject of evidence from the parties.
The applicant deposed that he joined the Liberal Party of Australia (NSW Division) in about 1994 and has remained a member since that time. He states that he has known the respondent since 2008 "through her membership of, and involvement with, the Liberal Party". The applicant states that he has also known Mr Lambert since 1995, not only by reason of Mr Lambert's employment with the Council until 1998 but also through Mr Lambert's membership of the Liberal Party. Through that association, the applicant became aware that the respondent and Mr Lambert, together with their son, resided at the Dulwich Hill property.
In late May of 2016, the Liberal Party opened nominations for the endorsement of candidates seeking election to the Council at the general election of councillors to be held in September of that year. The respondent lodged her nomination form for Party endorsement on 1 June 2016. In that nomination form she stated her address as being the Palmerston Road address. The nomination form signed by the respondent is in evidence before us.
Following the close of nominations with the Liberal Party, details of nominees were circulated to branch members of the Party. The applicant, a local branch member, stated that he "was surprised to read in respect of the respondent's nomination that the Palmerston Road property was her residential address". He had understood that she continued to reside at the Dulwich Hill address. What, if any, immediate inquiries the applicant then made as to the respondent's place of living is not disclosed by the evidence. Certainly, it would appear that shortly after that time and certainly prior to the September election the applicant sought to discover the respondent's place of living, albeit not by direct enquiry of the respondent herself. He retained a private investigator for that purpose.

The Respondent is nominated for election to the Council

Public notice of the forthcoming election and the call for nominations for the election of the mayor and 12 councillors to the Council was given on a date unspecified in the evidence but is said by the applicant to be a date in July 2016. The notice stated that the election was to be held on Saturday 10 September 2016. That notice was given by the general manager of the Council who was identified as the election manager. According to the notice, nominations for the office of mayor and four councillors to each of three wards, one of which was the Cabravale Ward, were required to be received by the returning officer before 12 noon on 10 August 2016. The public notice also stated that the residential and non-residential voting rolls for the September election would close on 1 August 2016.
A form of nomination, signed by the respondent and endorsed by her nominators, is dated 7 August 2016 and is recorded by the returning officer for the election as having been received on 10 August prior to the noon closing time. The address shown on the form for the respondent as the "full residential address as enrolled" is the Palmerston Road address. The respondent states that on 5 August she had withdrawn her application for endorsement as a Liberal Party candidate for the election. She stood as an independent candidate.
Prior to submitting her form of nomination to the Council as a candidate for election at the September 2016 poll, the respondent had changed her address on the electoral roll. A printed email message from the Australian Electoral Commission tendered in evidence confirms that both the enrolled address and postal address of the respondent was the Palmerston Road address, effective from the "enrolment date" of 12 May 2016. An extract from the records of the NSW Electoral Commission confirms that same change of address as a result of "electronic data" received from the Australian Electoral Commission via the State Commission's website on 12 May 2016.

Conduct of the election

While the general manager was, for the purpose of the Local Government Act, the "election manager", the organisation known as Australian Election Company was appointed by the Council to conduct or manage the election. Subject to the provisions of the Local Government Act and the Local Government (General) Regulation 2005 (the General Regulation), among the functions that organisation performed was the practical oversight of vote counting and publication of the results as counting proceeded.
There were a large number of councillors nominated for the four available places in the Cabravale Ward. As a consequence, the voting system applicable to the election of those four councillors was the "proportional system": s 285 of the Local Government Act. Counting of votes under the proportional system is governed by cl 351 of the General Regulation and the provisions of Sch 5 to that Regulation. Clause 3 of Sch 5 requires that completed ballot-papers be divided into parcels "according to the names of the candidates for whom the first preferences on the ballot-papers are recorded." The aggregate number of first preference votes is divided by one more than the number of candidates to be elected: the quotient from that division "increased by one …, becomes the quota" for election: Sch 5, cl 4. The "quota" is defined to mean the number of votes sufficient to elect a candidate. Clause 5(1) of that Schedule then provides: "(1) A candidate who has, upon the first preferences being counted, a number of first preferences equal to or greater than the quota is elected." Clause 6 of the Schedule provides that if the number of first preference votes obtained by a candidate exceeds the quota, the surplus is transferred to "the continuing candidates next in the order of voter's preferences" as set out in that clause.
The result of a progressive count in the Cabravale Ward was provided by and is said to have been published by the Australian Election Company on 16 September 2016 (Exhibit 2). The document prepared by that Company and headed "Results for Cabravale Ward Councillors (16-09-2016)" shows that the "quota" for the Cabravale Ward, as determined by reference to Sch 5 to the General Regulation, was 6,243 votes. That document also shows that on the initial count of first preferences (described as "Phase #1"), one candidate received 11,322 votes while the respondent received 8,200 votes. As is apparent, each of those two candidates had received the number of votes that exceeded the quota. They were the only candidates to have done so by that date. In respect of the respondent, the document states (p 3): "Electing Candidate LE Dai. [Candidate received 8,200 votes and quota was 6243] [Schedule 5; 5(1)]." The document contains a similar statement in respect of the candidate who had received 11,322 votes. The votes counted for all other candidates are also listed in that document.
The returning officer appointed by the general manager declared the result of the election of councillors for the Cabravale Ward on 23 September 2016. The respondent, together with three other candidates were then declared to be elected as councillors for that Ward. The declaration is in writing and is in evidence before us
What we have so far recorded identifies the evidence providing the background against which the issues between the parties are to be decided. Save that the applicant says he was unaware of the publication of the progressive count identified in Exhibit 2, that evidence is not in contest between the parties. The authenticity of Exhibit 2 is not challenged by the applicant. That background founds the basis upon which we turn to consider the issues joined between the parties.

Issue 1: the timely commencement of proceedings - s 329(3) of the Local Government Act

Logically, it is appropriate that we first address this issue. If the contention of the respondent is sustained on this issue, we would be required to dismiss the proceedings without the need to consider any other issue. Subsection (3) of s 329 would require as much.
For the purpose of addressing this issue, we will assume, without presently deciding, that there is an "irregularity" in the manner in which the respondent was elected as a councillor for the Cabravale Ward of the Council.
The respondent's primary submission is that the relevant date, when determining the three-month period "after the date of the person's election" for the purpose of s 329(3) of the Local Government Act is, in the present case, 10 September 2016. Reference is made by the respondent to the definition of "election" in the Dictionary to the Act as meaning (relevantly) "(b) an ordinary election". The "election" held on Saturday 10 September 2016, being the second Saturday in that month, was an "ordinary election" held in accordance with s 287(1) of the Act. As a result of votes cast at the election on that day, the respondent was "elected" and so, it is submitted, that was the date of the respondent's election to civic office.
Section 233 of the Local Government Act relevantly provides: 233 For what period is a councillor elected? (1) A councillor (other than the mayor) holds office for 4 years, subject to this Act. (2) The office of councillor; (a) commences on the day the person elected to the office is declared to be so elected, and (b) becomes vacant on the day appointed for the next ordinary election of councillors, or on the occurrence of a casual vacancy in the office.
In substance, the respondent submits that s 233(2)(a) is merely declaratory of the event that has already occurred, namely her "election" as a councillor. Applied to the present circumstance, the declaration of the poll on 23 September by the returning officer formally recorded the fact that as a consequence of the "ordinary election" held on 10 September 2016, the respondent had been elected, the purpose of the declaration being only to identify the date from which the office of councillor commences. That, so it is submitted, is not "the date of the [respondent's] election…to that office", applying the words of s 329(3). As the proceedings had not been commenced by 10 December 2016, subsection (3) operated as a bar to these proceedings.
Alternatively, the respondent says that the counting of votes reflected in Exhibit 2 shows that on 16 September 2016 the respondent had achieved the required vote quota, determined in accordance with Sch 5 to the General Regulation. The exhibit correctly states "Electing Candidate LE [sic] Dai". As a consequence, so the respondent submits, that was the date of her election.
Although not identified by the respondent, potential support for her alternate contention is found in cl 5 of Sch 5 to the General Regulation. As we have earlier recorded, the clause states that a candidate receiving the number of first preference votes "equal to or greater than the quota is elected" (added emphasis). Exhibit 2 records that the count of the respondent's first preference votes exceeded the quota determined in accordance with cl 4 of Sch 5. If cl 5 of the Schedule is applied, in terms, to that circumstance, the respondent had by 16 September been "elected". The consequence was that any proceedings for dismissal under s 329 were required to have been commenced by 16 December 2016. Again, the failure of the applicant to have commenced the proceedings by that date requires that they be dismissed.

The proper interpretation of s 329(3)

While the statutory provisions upon which the respondent relies must be given due consideration, ultimately it is s 329 that must be construed in order to determine the extent to which, if at all, those provisions impact upon its proper meaning. In Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 the plurality observed at [47] that "the task of statutory construction must begin with a consideration of the text itself". In that same passage their Honours further stated: "The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."
Observations were made to the same effect in Wilson v State Rail Authority (2010) 78 NSWLR 704; [2010] NSWCA 198 by Allsop P (Giles, Hodgson, Tobias and Macfarlan JJA agreeing) who said at [12]: "Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions of the Act, as a whole, are to be understood."
Applying these principles, it is necessary to consider s 329 in context and discern, from its provision, as well as other relevant provisions of the Act, its evident purpose.
While application of s 35(2) of the Interpretation Act 1987 (NSW) determines that the heading to s 329 is not part of the Local Government Act, that heading may nonetheless be considered as an aid to the interpretation of the section: Interpretation Act, s 35(5). The heading to s 329 refers to the dismissal of "the holder of a civic office". The Dictionary to the Act relevantly defines "civic office" as "the office of councillor". By operation of s 233, the "office of councillor" commences on the day upon which "the person elected to the office is declared to be so elected". In the present case, that occurred on 23 September 2016.
Subsection (1) of s 329 enables a person to apply for an order "that a person be dismissed from civic office". The text of the subsection, read by applying the definition of terms used in the subsection from the Dictionary to the Act, authorises "an application for an order that a person who holds the office of councillor be dismissed from that office". So understood, it is the holding of "office" that is fundamental to the operation of the section. That "office" is not held until the election is declared: s 233.
The apparent 'purpose' and 'mischief' to which the section is directed is the provision of a curial procedure whereby a person exercising the office of councillor may be dismissed from that office (the 'purpose') by reason of irregularity in the manner in which that person's election enabled the entitlements of office to be assumed (the 'mischief'). We do not readily perceive that Parliament's intention was to sanction the commencement of proceedings for dismissal once the counting of votes for a candidate first reveals that a sufficient number of votes had been received so as to create the expectation that the candidate's election will be declared. At that point in time, the candidate does not hold civic office. Until the process of vote counting is complete, including any recount to which candidates are entitled (cl 353 of the General Regulation), the legislative constraints would not permit the assumption to be made that the candidate will be declared as elected. No doubt that is why cl 356(1) of the General Regulation requires that the election manager approve the returning officer's declaration of the election "as soon as possible after the notification of the result of any recount or it becomes clear that no recount will be required".
In short, the requirement for a declaration of the election is to mark the time at which the process of vote scrutiny and counting in accordance with Div 9 of the General Regulation is, so far as the election manager is concerned, complete. Until that point in time is reached, it is inconsistent with the purpose of s 329(3) to interpret it as requiring the three-month limitation period for commencement of proceedings to run from the time at which the counting of votes first identifies a candidate as having a sufficient number of votes to be elected. Radical surgery is hardly required to the words of s 329(3) if the word "declared" is inserted into the phrase "the date of the person's election to that office", so that parenthetically it reads 'the date of the person's declared election to that office'. Reading the subsection in that way seems to us to reflect its meaning, understood in the context of the section as a whole, as well as reflecting the section's purpose. It cannot be the section's intent to sanction the commencement of proceedings for dismissal from an office that has not yet been conferred under the Act.
For these reasons, we reject the respondent's submission that these proceedings are not competent because they have been commenced in contravention of s 329(3) of the Local Government Act. The date from which time ran under the subsection was 23 September 2016. As the proceedings were commenced on 20 December 2016, not more than three months following the respondent's declared election as a councillor for the Cabravale Ward had expired.

Issue 2: "Irregularity" in the manner in which the Respondent was elected

As we have earlier recorded, for the purpose of s 329(2) of the Local Government Act, the applicant relies upon an "irregularity" in the manner in which the Respondent was elected to the Cabravale Ward of the Council as distinct from any suggestion that she was disqualified from holding civic office. The "irregularity" upon which the applicant relies is, as we have said, alleged on two bases. First, while the applicant accepts that the respondent satisfied the age and citizenship requirements for enrolment on the State electoral roll, her entry on that roll, recording the Palmerston Road address as her residential address at at the time of that enrolment, did not satisfy the provisions of s 22(1)(b) of the State Elections Act. He asserts that she had not lived at the address for at least one month before enrolment. Secondly, the applicant contends that the respondent was not entitled to be enrolled as an elector for the Cabravale Ward at the time at which the Council's electoral roll closed on 1 August 2016 because her place of residence at that time was not the Palmerston Road address.
Both parties accept that the expression "irregularity in the manner in which [the respondent] has been elected" should be construed conformably with the reasoning of the majority of the Court of Appeal (Cole and Beazley JJA) in Bourne v Murphy (1996) 92 LGERA 329. In construing the phrase, both Judges referred to the decision of the High Court in R v Gray; Ex Parte Marsh (1985) 157 CLR 351; [1985] HCA 67 where Gibbs CJ stated (at 368): "The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election."
While embracing the manner in which the Chief Justice had applied the word "irregularity" to the statutory phrase being considered in that case, Beazley JA refined or adapted its meaning to the context in which it was used in s 329(2). Her Honour said (at 358): However, I am of the opinion that it is not any irregularity which suffices for the purpose of s 329. Rather, it must be an irregularity such that the result of the election is thereby uncertain [citation of authority omitted].

An 'irregularity' in the State electoral roll

Succinctly stated, the applicant submits, as a matter of fact, that the respondent had not lived at the Palmerston Road property "for at least one month" before her enrolment in the "district" at that address, contrary to the requirement of s 22(1)(b) of the State Elections Act. The reference to a "district" in the section is a reference to an electoral district as determined under that Act for the election of a member to the NSW Legislative Assembly: s 4.
We have earlier recorded that the registration of the respondent's enrolment on the State electoral roll at the Palmerston Road address occurred on 12 May 2016. As the applicant contends, it was necessary for the respondent to have resided at that address from not later than 12 April 2016.
In support of his factual contention, the applicant relies upon a number of matters relating to the respondent's residential address, most of which are in contest between the parties. Particular reliance in support of the present contention is placed upon an email from the respondent to the general manager of the Council dated 13 April 2016. The respondent did not deny that she had sent that email. In that email she stated: "I just wanted to check with you in regards to my eligibility to run in the upcoming Council elections. My Association DAWN is registered at Suite D, 41 Spencer Street Fairfield. As you know I no longer reside in Fairfield LGA. Would you please let me know if I'm eligible? I need to organise if there is an issue."
We are prepared to assume for the purpose of determining this issue that, leaving aside other aspects of the respondent's actions and activities, her email to the general manager establishes, without more, that she was not residing at the Palmerston Road address on or before 12 April 2016. Does that fact, as we assume it to be for present purposes, identify an "irregularity" to which s 329 of the Local Government Act is directed? In our opinion, it does not.
As the applicant acknowledged, the present issue, founded in s 22 of the State Elections Act, constitutes a collateral challenge to the validity, or at least the accuracy, of the entry in the State electoral roll. The applicant also acknowledged that no such challenge has been raised with or notified to the State Electoral Commission or its Commissioner.
The respondent submitted that even if her enrolment did not comply with s 22(1)(b) of the State Elections Act, that does not constitute "an irregularity in the manner in which [she] has been elected" within the meaning of s 329(2)(a) of the Local Government Act. We accept that submission. The respondent's enrolment on the State electoral roll occurred about two months before the July notification of the election to be held on 12 September and over two months (12 May to 1 August) before the rolls closed prior to the election date. That entry did not constitute "a departure from any rule, established practice or generally accepted principle governing the conduct of the elections" by reference to the provisions of the Local Government Act. Further, the assumed failure to comply with the State Elections Act does not constitute any irregularity "such that the result of the election was [by reference to the provisions of the Local Government Act] thereby rendered uncertain."
That understanding of "irregularity" in the context of s 329(2) would seem to us to accord with the determination of Bell J in Roberts v Jeffery [2003] NSWSC 162. At [49] her Honour accepted that an irregularity for the purpose of the subsection "in the manner in which a person has been elected to civic office" extends to an irregularity "affecting the conduct of the election, the latter including the whole proceeding from the first step taken by the returning officer of [sic, to] the declaration of the result." That description of the relevant irregularity does not extend to an event that precedes the "first step" of declaring an election or even giving notice of an election to be held, namely registration as an elector on the State electoral roll, nor is that registration as an elector on the State roll part of "the whole proceeding", being the process whereby a person is elected to civic office at a particular election.
Further, Pt 4 of the State Elections Act contains detailed provisions directed to electoral rolls and the enrolment of persons on a roll. Relevantly, s 27(2), in Div 2 of that Part, obliges a person who is an enrolled elector to update such enrolment when the elector changes his or her registered residential address. That update is required to be notified to the Commission within 21 days after becoming eligible for enrolment at that new address. Section 32 in Div 3 of the same Part entitled "an elector" to object to a person's enrolment on the electoral roll. One of the grounds upon which that objection may be made is that the address for which the person is enrolled "is not the person's real place of living": s 32(1)(b). Subclause (3) of that section provides: "(3) Objection on the ground that the address for which a person is enrolled is not the person's real place of living is not a sufficient ground of objection unless the objection alleges that the person objected to does not live at the address and has not lived at the address for at least one month immediately before the date of the objection."
The sections that follow in Div 3 of Pt 4 address the requirement for notice of the objection to be given to the enrolled person and the provision of an "answer" to that objection from the enrolled person. The objection is then to be determined by the Electoral Commissioner, including a determination that the person is not entitled to be enrolled at the address in respect of which the objection has been made: s 35(2).
The provisions of Div 4 of Pt 4 allow for either an elector whose enrolment claim is rejected by the Electoral Commissioner or an objector whose objection is unsuccessful, to apply to the Local Court, in substance, for an order having the effect of reversing the determination of the Electoral Commissioner: s 36. The terms of ss 36 and 37 indicate that the hearing before the Local Court requires a determination to be made on the evidence presented to it; that is, it conducts a hearing without being confined to the material provided to the Electoral Commissioner. That determination binds the Electoral Commissioner with the consequence that if the Local Court's determination differs from the Commissioner's determination of the objection, the roll is required to be altered to give effect to the Court's determination: s 37(2).
Section 303 of the Local Government Act provide for the lodgement of claims with the Electoral Commissioner for entry on the electoral roll, the right of a person to object to the inclusion of such an entry, including particulars (such as an address) recorded against that entry and the determination of such objection by the Electoral Commissioner: s 303(1). The Electoral Commissioner is required to determine any such objection: s 303(2). Should either the enrolled elector or the objector be dissatisfied with the decision of the Electoral Commissioner, that person may apply to this Tribunal "for an administrative review under the Administrative Decisions Review Act 1997 of the decision": s 303(3).
We see these provisions as speaking against a determination of "irregularity" under s 329 of the Local Government Act, founded upon an entry on the State electoral roll under the State Elections Act, on the basis that the residential address recorded on that roll is not the residential address of the elector. In the face of the legislative scheme within the latter Act for the consideration and determination of objections to entry on the State electoral roll, we consider it unlikely that Parliament intended that the same basis for challenge be available under the different statutory scheme established by s 329 of the Local Government Act where the elector challenged has sought election under the latter Act. Particularly is this the case where the Local Government Act provides its own regime for challenging entries on a council's roll other than by way of challenge through s 329.
Further, Div 2 of Pt 6 of Ch 10 of the Local Government Act provides its own regime for the keeping and seeking entry upon the residential roll for the purpose of the Act. In so doing, the Electoral Commissioner may use the roll for election in the Legislative Assembly as the basis for that roll: s 298. Where a local government election is to be managed by the general manager of a Council, as is the case here, the Electoral Commissioner is bound to provide the roll kept by him or her to the general manager of a council "as soon as practicable" after the closing date for an election.
For these reasons, we reject the Applicant's claim for an order for the respondent's dismissal under s 329 on the basis that her enrolment on the electoral roll under the State Elections Act was an "irregularity" within the meaning of s 329(2)(a). Any challenge to that enrolment on the basis that the enrolled address is not the address of the elector is required to be made and determined under Pt 4 of the State Elections Act. Unless and until an objection made under the latter Act to the enrolled address of an elector is successfully determined, the entry on the State electoral roll should be taken as correctly recording the residential address of the enrolled elector.
We recognise that this conclusion does not accord with that reflected in the decision of an Appeal Panel of the former Administrative Decisions Tribunal in Borsak v Cheung [2006] NSWADT 5. However, it seems to us, with great respect, the conclusion of the Panel that a person may be dismissed from civic office in proceedings brought under s 329 of the Local Government Act for irregularity, on the basis that the residential address of a councillor recorded on the electoral roll was not that councillor's place of residence at the close of nominations for the relevant election, does not give appropriate weight to the language of the relevant statutory provisions.
At [51], the Panel appears to approach the task of statutory construction on the basis that "the electoral law read as a whole requires that a person who votes in a council election be a current resident of the area". The discussion of the "electoral law" preceding that statement identifies not only the provisions of the Local Government Act but also both State and Commonwealth electoral legislation. That statement seems to have been made on the basis of a purposive approach to the construction of the legislation.
While a purposive approach to statutory construction is consistent with both principle and the provisions of s 33 of the Interpretation Act, as the decided cases make clear, the purpose must be discerned from the statutory provisions being considered in their context within the particular Act being construed. Indeed, as Gleeson CJ observed in Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5], the general rule of interpreting legislation by reference to purpose may not assist "where a statutory provision strikes a balance between competing interests" and the difficulty of determining "how far the provision goes in seeking to achieve an underlying purpose". As his Honour also said in that same paragraph: "Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which legislation achieves a purpose, stating the purpose is unlikely to solve the problem."
We have earlier referred to the decision of the High Court in Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue where the plurality observed "that the task of statutory construction must begin with a consideration of the text itself". We have also referred to the passage of the judgment in which that statement was made identifying the prospect that there may be a necessity to consider context and, in particular, the mischief sought to be remedied as an aid to interpretation of a particular provision. That reference is preceded by the plurality stating that the "language which has actually been employed in the text of legislation is the surest guide to legislative intention".
The entitlement to be nominated for election to a council turned upon the sequential consideration of ss 306, 274 and 266 of the Local Government Act. Given the issue for determination in Borsak, focus was required (as in the present case) upon s 266, to be interpreted by applying the meaning of "resident" expressed in s 269. The danger of seeking to interpret those provisions by applying "electoral law read as a whole", as was done in Borsak, does not sufficiently recognise the differences among the various statutes to which the Panel referred when addressing the term "resident".
By way of example, the difference is, with respect, well-illustrated in the judgment of Basten JA in Duffy v Da Rin (2014) 87 NSWLR 495; [2014] NSWCA 270. At [24] his Honour said (Meagher and Ward JJA agreeing): "Section 269(3) provides that a place of living (only for the purposes of that section) includes a place to which a person intends to return, although temporarily residing elsewhere. That concept does not directly fit with s 22(4)(b) of the State Elections Act, which prevents a person being enrolled in respect of an address other than that at which the person is living at that time." As his Honour had also noted at [20], because of the requirements of s 266(1), "the rolls required to be kept for local government elections are separate from the rolls for State and Commonwealth elections", referring to the provisions of ss 298-301 of the Local Government Act.
In making the decision that it did, the Panel in Borsak placed some significance upon the provisions of s 275(3) of the Local Government Act. The subsection states: (3) A person is not disqualified from holding a civic office only because, while holding the civic office, the person ceases to be a resident of the area, to own property in the area or to be an occupier or ratepaying lessee of rateable land in the area.
That provision, so it seems to us, does not address the issue requiring determination. The obvious purpose of the subsection is to ensure continuity in office of a councillor who was elected on the basis that he or she was a resident of that particular area (including a ward) even if, after election, that councillor ceases to reside within the ward. The subsection does not address the antecedent issue as to whether the councillor was entitled to be elected because of the entry on the State electoral roll.
As we have said, the provisions of the Local Government Act must be the focus upon which the determination of an "irregularity" is made by reference to a person's "place of living" at relevant times. Any claimed irregularity or anomaly in the electoral roll by reference to the provisions of s 22 of the State Elections Act does not constitute an "irregularity" within the meaning of s 329 of the Local Government Act.
While comity requires that we give due respect to the decision of the Panel in Borsak, we consider that upon the proper interpretation of the relevant statutory provisions, fundamentally those within the Local Government Act, we are unable to conclude that an irregularity arises by reason of the address of the respondent entered on the electoral roll under s 22 of the State Elections Act.
We note from the first instance decision in Da Rin v Duffy [2013] NSWADT 284 that the parties are recorded at [11] as accepting the decision of the Panel in Borsak and, by inference, the reasoning that lead to that decision. As a consequence, the Panel deciding Da Rin had no reason to question the earlier decision in Borsak. The position taken by the parties at first instance also had the consequence that the correctness of the reasoning in Borsak did not directly arise for determination by the Court of Appeal in Duffy v Da Rin, to which we have earlier referred. However, in Duffy Basten JA observed at [35] that "aspects of the reasoning [in Borsak] were questionable". As will be seen, that observation, together with other observations of the Court of Appeal in Duffy to which we will later refer, supports the decision we have respectfully made, not to follow the reasoning in Borsak.

The Respondent's place of residence: the operation of ss 266 and 269 of the Local Government Act

The second basis upon which "irregularity" is asserted by the applicant directly addresses the provisions of the Local Government Act. Ultimately, the determination of this issue turns upon a finding as to whether the respondent was at relevant times a "resident", within the meaning of Pt 1 of Ch.10 of the Local Government Act, at the Palmerston Road address. Determination of the issue requires, in turn, that further consideration be given to some of the provisions of the Local Government Act to which we have already directed attention when addressing the previous issue.
In order to be elected as a councillor, the respondent was required to be nominated for that position: s 306(1). Section 306(2) identifies the requirements for nomination. Relevantly, the subsection provides: (2) To be duly nominated for election as a councillor for an area, or for election as mayor for an area by the electors of an area, a person must be enrolled as an elector for the area, and must be qualified to hold that civic office, at the closing date for the election.
The punctuation used in the drafting of that subsection means that each of the two qualifications required of a nominee be held at the closing date for the election, in this case 1 August 2016. Relevantly, the qualifications required are first that the respondent be enrolled as an elector for the area and second that she be qualified to hold civic office at that date.
The qualification for civic office is addressed in s 274. The section provides: "274 What are the qualifications for civic office? A person is qualified to hold civic office if: (a) the person is entitled to be enrolled as an elector, and (b) the person is not disqualified from holding civic office by this Act, and (c) the person is not prevented from being elected to civic office by section 276(2)." It is only par (a) of the section that is presently relevant to the determination of these proceedings.
The entitlement "to be enrolled as an elector" for a ward is governed by s 266, the relevant provisions of which we have earlier quoted at [6]. That section imposes two requirements upon that entitlement. The first is that the person be entitled to vote at (relevantly) "an election of members to the NSW Legislative Assembly". The second presently relevant requirement is that the person be a "resident of the ward".
The first of those requirements was satisfied in the present case by reason of the respondent's entry on the State electoral roll: s 23 of the State Elections Act. In order to address the second requirement, it is necessary to determine whether the respondent was entitled to enrolment as an elector on the basis that she was a resident at the Palmerston Road property, an address that is accepted as being within the Cabravale Ward.
That determination must be made having regard to the provisions of s 269. We have earlier quoted that section at [8].
As is apparent from the provisions of subsection (1) of s 269, there are two requirements for the entitlement of a person to qualify as a resident of a ward. In the present case, par (a) of the subsection is satisfied by reason of the enrolment of the respondent on the State electoral roll. She was, at the time at which nominations closed, "enrolled on the roll for an electoral district" within the meaning of the State Elections Act.
In order to appreciate the significance of the words used in the second limb of the requirement for a person to qualify as a "resident" we again quote the provisions of par (b) of subs (1): (b) the person's place of living as described on that roll is in the ward or (in the case of a person whose place of living is not described on that roll) the person's place of living is in the ward. (Emphasis added) The Respondent's place of living for which she was enrolled under the State Elections Act was "described on that roll" as the Palmerston Road address.
Circumstances similar to those arising in the present case were considered by the Court of Appeal in Duffy v Da Rin. Following the passage from [24] earlier quoted, Basten JA said: Further, there is a potential discrepancy between the two limbs of s 269(1)(b). Under the first limb, the requirement appears to be that the person's place of living as described on the roll is in the ward (or area). The second limb, however, requires that the person's place of living be in the ward (or area), which allowed a factual challenge on the basis that the place of living was not in the ward. Because no copy of the roll was put in evidence before the Tribunal, it may be assumed that the proceedings were conducted on the basis of the second limb.
Two matters of relevance follow from his Honour's observations in that paragraph. First, he recognised the potential for the requirement to be satisfied if the place of living as described on the roll was in the relevant ward within the council's area. The second aspect of his Honour's observation is that, in the circumstances of that case, the assumption was made that the person's place of living was to be determined by a factual inquiry at the hearing before the Tribunal because the person's place of living was not stated on the electoral roll. It was on that latter basis that the case proceeded and was decided. However, as we have recorded, in the present case we do have evidence of the respondent's entry on the roll, including her place of residence at the Palmerston Road address.
Later in his judgment, Basten JA returned to the "discrepancy" in the provisions of s 269(1)(b). Commencing at [33], his Honour said: [33] Nevertheless, at least in one respect the language of s 269(1)(b) is unclear. On one view, if the relevant electoral roll describes a 'place of living' for a person, which is within the relevant ward, that may be an end of the matter. If it does not, there will be a factual question as to whether the person's place of living is in the ward. The alternative construction requires that the factual question be answered in each case. Thus, if as a matter of fact the person's place of living is not the place described on the roll, the first limb is not satisfied: that an address within the ward is described on the roll is beside the point. On that approach, both limbs depend upon the correct identification of the "place of living". [34] The second interpretation seems to render the first limb of par (b) otiose. However, the first interpretation would render a statement on the electoral roll sufficient, whatever the true factual situation, although objection would be taken under the State Elections Act, s 32. That intention is by no means clearly expressed. A third possibility is that the electoral roll is determinative if the location described is within the relevant ward, but not if it is outside the ward. In the latter case, a person can, nevertheless, demonstrate the factual circumstances which satisfy a place within the ward. As a practical matter that construction is unattractive: the apparent intention of the legislative scheme for elections is to allow people to place themselves on a roll for a particular ward, which will allow them to vote in that ward. On the manner in which the case was run in the Tribunal, it is not necessary for this Court to resolve these questions.
Neither party suggested, nor do our researches reveal, that any subsequent decision of the Court has addressed the questions left unresolved in Duffy. For the reasons that we have given, we respectfully consider the first interpretation identified by his Honour is the correct interpretation to be given to the section. It gives effect to the words used in subsection (1)(b). As his Honour observed, that interpretation has the consequence that the statement of an elector's address on the electoral roll satisfies the requirements of par (b). We consider, with respect, that the legislative intent is made tolerably clear by the text of the clause. Provided the roll "describes" the elector's place of living, subject to the observation we next make, no further inquiry as to that entry is required. Such a consequence is unsurprising, given the integrity expected of the information recorded in a public document in the form of the Sate electoral roll.
That interpretation does not have a perverse or apparently unintended consequence, given the entitlement created by s 32 of the State Elections Act for objection to be made to an entry on the State electoral roll, including an address, with a process available for determination of dispute in the event of such objection. In that context, it is important to notice that a copy of the electoral roll is required to be available "for public inspection without fee" at any time "during ordinary office hours": s 39 State Elections Act. By so providing, the latter section facilitates exercise of the entitlement to object under s 32.
The applicant's submission was that, as a matter of fact, the provisions of s 269(1) were not satisfied by the respondent. Referring to par (a) of the subsection, he contended that the respondent was not enrolled on the State electoral roll for an electoral district, or at least for that applicable to the Fairfield local government area, because she resided at the Dulwich Hill property. That was her place of residence both at the time when she changed her enrolment to the Palmerston Road address and also at the time of the closure of the roll on 1 August 2016. Therefore, so it was submitted, on neither date did her entry on the roll conform with the requirements of s 22 of the State Elections Act. We have rejected that submission as founding an entitlement to order under s 329(1) of the Local Government Act for the reasons given when addressing the applicant's first ground of challenge.
The applicant further submitted that par (b) of subsection (1) is not satisfied because, on the evidence adduced at the hearing before us, the respondent's "place of living" at any time between 12 April and 1 August 2016 was not the Palmerston Road address. Although not articulated in terms, that contention mirrored "the second interpretation" identified by Basten JA in Duffy at [34]-[35]. It was to the effect that the factual question as to the "place of living" of the respondent was required to be answered by the Tribunal upon the evidence adduced before it, notwithstanding the presence of a residential address on the electoral roll.
We respectfully embrace his Honour's observations that the second interpretation of par (b) identified by him gives no work to do for words in the first limb of the paragraph. That interpretation would have the result that the paragraph be read as if its complete expression was, "the person's place of living is in the ward". We cannot assume that the legislature intended that the words "as described on that roll", immediately following the words "place of living" are superfluous or insignificant rather than adjectival. To interpret the provision in the manner adopted by the applicant would be contrary to principle (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71]).
For the reasons that his Honour articulates at [34], the third possible interpretation of the paragraph that he posits should not be accepted.
The consequence of our reasoning as to the proper interpretation of s 266 of the Local Government Act, applied to the facts that we have identified, is that there is no "irregularity" demonstrated by the applicant as to the manner in which the respondent was elected to civic office as a Councillor of the Council. We find that on 1 August 2016, when the roll closed for the election to be held on 10 September 2016, the respondent was enrolled as an elector for the area, within the meaning of s 306(2) of the Act. By reference to s 274 of the Act, she was qualified to hold civic office because she was then entitled to be enrolled as an elector; she was not disqualified from holding that office and not prevented from being elected to that office by s 276(2) of the Act. The applicant did not contend that the respondent did not fulfil those latter two requirements of s 274 of the Act.
We also find that the respondent was entitled to be enrolled because she was, on 1 August 2016, a "resident of the Cabravale Ward" within the meaning of s 266(1) of the Act. On that date she was enrolled on the State electoral roll within the meaning of the State Elections Act and her "place of living as described on that roll" was the Palmerston Road address, located within the Cabravale Ward. That finding is the consequence of applying the provisions of s 269(1) of the Act to the term "resident" as used in s 266(1).
These findings render it unnecessary to resolve the contested evidence led at the hearing as to the address at which the respondent resided at the relevant dates. As is apparent, we have made our determination upon facts that were not in contest. However, there is one matter upon which it is appropriate that we make an observation.
The applicant focused closely upon the regularity with which the respondent stayed at the Palmerston Road address and, on the occasion of such stays, the length of time for which she occupied a room on that property. While evidence of that kind was relevant, it was not decisive when applying the evidence to the phrase "place of living" as defined in s 269(3). In that context the observations of Basten JA in Duffy at [42] are pertinent. There, his Honour stated that "neither regularity nor continuity is necessarily indicative of a 'place of living'". His Honour gave the example of a person, residing in the country but working full time in a city with an apartment that the person used in that city, as potentially having two places of living. As his Honour also stated at [55] "the mere fact that the place of living was not intended to be maintained permanently or indefinitely would not by itself preclude the place being a 'place of living' for the purposes of the Local Government Act, s 269". Those observations would have been relevant to our consideration of the contested evidence as to the respondent's place of living, had a factual decision on the issue been required.

CONCLUSION

For the reasons that we have expressed, the applicant has not established an irregularity in the manner in which the respondent was elected to civic office on 23 September 2016. He has not established any basis upon which the Tribunal can make an order under s 329(1) of the Local Government Act that she be dismissed from that office.
Accordingly, we make the following order: 1. The application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2018

Parliamentary Electorates and Elections Act 1912(NSW)

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