Patmore v Independent Indigenous Advisory Committee

Federal Court of Australia (Full Court)|2002-10-17|Before: Downes JJ, Gray J

The nature of the proceeding 1 The question of law referred to the Court in this matter results from a challenge to the validity of certain rules made pursuant to the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the ATSIC Act").

The statutory provisions 2 The Aboriginal and Torres Strait Islander Commission ("ATSIC") is a body corporate established by s 6 of the ATSIC Act. Part 3 of the ATSIC Act makes detailed provisions for elected Regional Councils. Division 4 of Pt 3 contains provisions relating to elections for those Regional Councils. By s 100, those elections are to be conducted by the Australian Electoral Commission ("the Electoral Commission"), in accordance with the provisions of the ATSIC Act and the Regional Council election rules in force at the beginning of the election period. By s 100A, a Regional Council may be divided into wards for the purposes of electing councillors to a Regional Council. 3 Section 101 is as follows: "101 Persons entitled to vote at Regional Council elections A person is entitled to vote at a Regional Council ward election if and only if: (a) the person is an Aboriginal person or a Torres Strait Islander; and (b) either: (i) the person's name is on the Commonwealth Electoral Roll and the person's place of living as shown on that Roll is within the ward concerned; or (ii) the person is entitled to vote at the election pursuant to rules made under subsection 113(3)." The expression "Aboriginal person" is defined in s 4(1) as meaning a person of the Aboriginal race of Australia, and the expression "Torres Strait Islander" is defined as meaning a descendant of an indigenous inhabitant of the Torres Strait Islands. 4 By s 108, voting is not compulsory. By s 109, voting is required to be by secret ballot. 5 Section 113 of the ATSIC Act provides relevantly as follows: "113 Rules for conduct of elections (1) The Minister may, after consulting the Aboriginal and Torres Strait Islander Commission and the Electoral Commissioner, make rules, not inconsistent with this Act, prescribing: (a) the manner in which Regional Council elections are to be conducted … (2) The matters that may be dealt with in rules under subsection (1) include, but are not limited to, the following matters: (a) the use of an electoral roll or voter cards to establish an entitlement to vote or to make a record of the persons who have cast votes; (b) the functions of Aboriginal and Torres Strait Islander liaison officers in connection with the determination of a person's entitlement to vote; (c) the nomination of candidates for election; (ca) nomination fees. (d) ballot papers and forms; (e) postal voting; (f) mobile polling, including the appointment and duties of mobile polling teams and matters relating to polling by such teams; (g) confidentiality of voting; (h) the employment by the Australian Electoral Commission of staff, including polling staff, in connection with elections; (j) the scrutiny and counting of votes; (k) the declaration of the poll." Subsection (3) provides for the making of rules entitling people to vote whose names are on the Commonwealth Electoral Roll but whose places of living or addresses are not shown on that roll, persons entitled to have their name on the Commonwealth Electoral Roll but whose names are not there because of a mistake, and provisional voting by persons whose names are not on the Commonwealth Electoral Roll. By subs (4), the rules may provide penalties for breaches. By subs (8), the rules are a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth). 6 Division 8 of Part 3 of the ATSIC Act makes provision for disputed elections. Its only section is s 140, which brings into operation the provisions of Sch 4 to the ATSIC Act. Schedule 4 contains provisions whereby the validity of any election, or of the declaration of a poll for an election, may be disputed by petition addressed to this Court and not otherwise. Jurisdiction is conferred on this Court to try election petitions. The powers of the Court under item 10 include powers to declare that any person who was returned was not duly elected, to declare any candidate duly elected who was not returned and to declare the election absolutely void. The powers to declare that any person who was returned was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election and only if the Court is satisfied that the result of the election was likely to be affected. Item 11 provides: "11 Inquiries by Court The Court shall inquire whether or not an election petition is duly signed, and so far as rolls and voting are concerned may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the Commonwealth Electoral Roll to be correct, but the Court shall not inquire into the correctness of the Commonwealth Electoral Roll." 7 It is also necessary to refer to item 15: "15 Evidence that person not permitted to vote On the trial of any election petition the Court shall not admit the evidence of any witness that he or she was not permitted to vote in the election during the hours of polling on a polling day unless the witness satisfies the Court: (a) that he or she claimed to vote, in the election, pursuant to that provision of this Act, the Regional Council election rules or the TSRA election rules under which he or she was entitled or might be permitted to vote; and (b) that he or she complied with the requirements of this Act, and whichever of the Regional Council election rules, the TSRA election rules and the zone election rules is applicable, relative to voting by electors in so far as he or she was permitted so to do."

The rules 8 From time to time, the Minister administering the ATSIC Act (currently the Minister for Immigration and Multicultural and Indigenous Affairs) ("the Minister") has exercised the power given by s 113 to make rules. The Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 ("the RCE Rules") have been amended from time to time. 9 The jurisdiction bestowed on the Court by s 140 and Sch 4 of the ATSIC Act was invoked in Shaw v Wolf (1998) 83 FCR 113. In that case, the validity of the election of eleven persons to the Regional Council for the Hobart Region was challenged on the ground that they were not persons of the Aboriginal race of Australia. Merkel J declared that one of those persons had not been duly elected and made consequential orders. In the concluding observations in his reasons for judgment, at 137, his Honour said: "It is unfortunate that the determination of a person's Aboriginal identity, a highly personal matter, has been left by a Parliament that is not representative of Aboriginal people to be determined by a Court which is also not representative of Aboriginal people. Whilst many would say that this is an inevitable incident of political and legal life in Australia, I do not accept that that must always be necessarily so. It is to be hoped that one day if questions such as those that have arisen in the present case are again required to be determined that that determination might be made by independently constituted bodies or tribunals which are representative of Aboriginal people." 10 No doubt in response to this suggestion, in preparation for the 2002 Tasmanian Regional Council elections, the Minister made Pt 8 of the RCE Rules. By r 140, Pt 8 applies to the 2002 Tasmanian Regional Council elections. By r 141, the purpose of the Part is to provide for the establishment of an Indigenous Electors Roll for those elections, "to ensure that only indigenous persons may vote in those elections." 11 Rule 143 requires the Electoral Commission to prepare the Indigenous Electors Roll in accordance with Pt 8. Rule 144 provides: "144 Eligibility A person is eligible to be included on the Indigenous Electors Roll if the person: (a) will be at least 18 at the date of the next election; and (b) lives in the ward for which the person wishes to enrol." Immediately following this rule in the print of the rules, appears a note to the effect that s 101 of the ATSIC Act provides that a person is entitled to vote at a Regional Council election only if the person is an Aboriginal person or a Torres Strait Islander. 12 Rule 145 provides as follows: "145 Enrolment (1) ATSIC must, by notice: (a) invite applications for enrolment on the Indigenous Electors Roll; and (b) state the closing date for applications. (2) A notice under subrule (1) must be published in at least 2 newspapers or periodicals that ATSIC considers are likely to be read by a reasonable number of persons having an interest in the 2002 Tasmanian Regional Council elections. (3) A person who wishes to be included on the Indigenous Electors Roll must complete an indigenous enrolment form. (4) A completed indigenous enrolment form must: (a) be signed by the person applying for enrolment; and (b) be witnessed by a person entitled to enrolment on an Electoral Roll under the Electoral Act, who must sign the form as witness in his or her own handwriting; and (c) be lodged with the Electoral Commission before the closing date." The expression "indigenous enrolment form" is defined in r 142 as meaning an enrolment form approved by the Electoral Commission for the purposes of Pt 8. Such a form was tendered to the Court without objection. The form requires that the person completing it declare that he or she is eligible to enrol for "ATSIC, Federal, and Tasmanian State Elections" and that the information given on the form is true and complete. 13 Rule 146 requires that, within twenty-eight days of the closing date mentioned in r 145(1)(b), the Electoral Commission must create a Provisional Roll and give it to the Independent Indigenous Advisory Committee ("the Committee"), established under r 156. The Provisional Roll must set out the surname, given name or names and address of each person on the roll. Section 147 provides that the Committee must make copies of the Provisional Roll available for public inspection. It must give notice of the locations where the Provisional Roll is so available and to the effect that enrolment of a person on the Provisional Roll may be objected to under r 148. The publication requirements for such notices reflect those in r 145(2). Rule 148 provides: "148 Objection to the enrolment of a person on the Provisional Roll (1) An Australian citizen who is at least 18 and who has an honest belief that an applicant enrolled on the Provisional Roll is not an indigenous person may object to the inclusion of an applicant on the Provisional Roll. (2) An objection must set out the reasons why the objector has an honest belief that an applicant enrolled on the Provisional Roll is not an indigenous person. (3) A person who wishes to make an objection under subrule (1) must complete an objection form. (4) A completed objection form must: (a) be signed by the person making the objection; and (b) be witnessed by a person entitled to enrolment on an Electoral Roll under the Electoral Act, who must sign the form as witness in his or her own handwriting; and (c) be lodged with the Committee by 5 pm on 28 June 2002. (5) On receiving an objection, the Committee must notify the objector in writing that the objection has been received. (6) The Committee must not consider an objection if: (a) the objection does not set out the reasons why the objector has an honest belief that an applicant enrolled on the Provisional Roll is not an indigenous person; or (b) the Committee considers, on reasonable grounds, that the objection is frivolous or vexatious. (7) If the Committee has considered an objection to the enrolment of a person on the Provisional Roll, the Committee must not consider any other objections to the enrolment of that person. (8) If the Committee decides not to consider an objection under subrule (6), or is prevented from considering an objection under subrule (7), the Committee must notify the objector in writing that the objection will not be considered, and of the reason that it will not be considered. (9) If subrule (7) or (8) does not apply, the Committee must: (a) notify the applicant in writing that an objection to the enrolment has been made, and of the name of the objector; and

(b) ask the applicant to make a submission in relation to the objection, in the form required by the Committee, within 21 days of the date of the notice." 14 By r 149, if an applicant makes a submission in response to a request under r 148(9)(b), the submission must provide evidence that the applicant is an Aboriginal person or a Torres Strait Islander. By r 150, if the applicant does not make a submission within the period referred to in r 148(9)(b), the Committee must, as soon as practicable after the end of that period, accept the objection. Rule 151 provides: "151 Consideration of objection - if applicant has not made a submission (1) This rule applies if the applicant has made a submission within the period mentioned in paragraph 148 (9) (b). (2) The Committee must consider the objection and the applicant's submission. (3) If the Committee believes that there is insufficient evidence on which to make a decision, the Committee must ask the applicant to provide sufficient information to allow the Committee to make a decision. (4) A request under subrule (3) must specify the kind of information that is required, the date by which the information must be provided to the Committee, and the places (if any) at which help in obtaining further information may be available. (5) After considering the objection, the applicant's submission and any information provided under subrule (3): (a) if the Committee is satisfied, on the balance of probability, that the applicant is an indigenous person, the Committee must reject the objection; and (b) if the Committee is satisfied, on the balance of probability, that the applicant is not an indigenous person, the Committee must accept the objection. (6) The Committee must make its decision on or before the date on which nominations for the poll open." 15 Rule 152 provides for help for applicants in obtaining further information and in preparing submissions. Rule 153 requires the Committee to notify the applicant in writing of a decision under r 150 or r 151(5) and of the reasons for decision. The Committee must also notify the Minister, the objector and the Electoral Commission. If the Committee accepts the objection, the Electoral Commission must remove the applicant's name from the Provisional Roll. By r 154, the Electoral Commission must create the Indigenous Electors Roll after receiving notice of the Committee's decision in relation to each objection that has been considered. The Indigenous Electors Roll must set out the surname, given name or names and address of each person on the Roll. The Electoral Commission must give the Indigenous Electors Roll to ATSIC, which owns it and may use it only for the purposes of the 2002 Tasmanian Regional Council elections. 16 Rule 155 makes detailed provision for persons not to have their addresses shown on the Indigenous Electors Roll in certain circumstances. Division 3 of Pt 8 of the RCE Rules contains provisions for the establishment, remuneration, procedure and administration of the Committee and for resources to help in its deliberations. The Committee is to be composed of nine indigenous persons appointed by the Minister. For each ward, the Committee must include two members who live in that ward. 17 Rule 161 provides that voting will be by postal vote. The indigenous enrolment form that was completed by a person whose name is on the Indigenous Electors Roll is taken to be an application by that person for a postal vote. After the close of nominations, the relevant regional returning officer must post to all voters on the Indigenous Electors Roll the voting papers. 18 Division 5 of Pt 8 of the RCE Rules creates offences relating to making a copy of the whole or part, disclosing the contents of, or using information on, the Provisional Roll or the Indigenous Electors Roll. Provision is made for defences if the copy, disclosure or use of information was for the purposes of the 2002 Tasmanian Regional Council elections. In the case of disclosure of contents or use of information, to make out the defence, the person must also have been allowed to make the disclosure, or allowed to use the information, under Pt 8. 19 Rule 166(1)(a) makes provision for review by the Administrative Appeals Tribunal ("the AAT") of a decision of the Committee under r 151(5) to accept an objection. 20 Rule 169 provides that a number of provisions of the RCE Rules are not to apply in relation to the 2002 Tasmanian Regional Council Elections. In addition, by r 170, Sch 2 to the RCE Rules is made applicable, to modify the RCE Rules in accordance with its terms. Among the modifications effected by Sch 2 is the addition of a new subr (3) to r 8, in the following terms: "(3) A person who nominates for the 2002 Tasmanian Regional Council Election must be enrolled on the Indigenous Electors Roll mentioned in rule 154."

The history of the proceeding 21 The Committee has accepted objections made to the inclusion on the Indigenous Electors Roll of a number of persons who completed and lodged indigenous enrolment forms in accordance with r 145. Accordingly, if the Committee's decisions stand, the names of those persons will not be on the Indigenous Electors Roll. They will not receive ballot papers pursuant to r 161. Pursuant to r 166, a number of those persons applied to the AAT for review of the decisions of the Committee. (Although they are not applicants to the Court, it is convenient to refer to them in these reasons for judgment as "the applicants". The respondent to the proceedings in the AAT is the Committee.) In the course of the hearing of those applications, or some of them, counsel for the applicants submitted that all or some of the rules found in Pt 8 of the RCE Rules are beyond the rule-making power found in s 113 of the ATSIC Act and are therefore invalid. Pursuant to s 45(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), the Tribunal referred to the Court the following question: "Whether all or part of Part 8 of the Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 are void or invalid as not being authorised by the provisions of Section 113 of the Aboriginal and Torres Strait Islander Commission Act 1989." The question was referred on 30 September 2002. The Full Court heard argument on the question, as a matter of urgency, on 1 October 2002.

The submissions of the applicants 22 The feature of Pt 8 of the RCE Rules on which counsel for the applicants fastened is the power given to the Committee, particularly by r 151(5), to decide which of those who apply for enrolment, in respect of whom an objection has been received, is to have his or her name included on the Indigenous Electors Roll. Counsel for the applicants characterised this function as a determination by the Committee of the eligibility of voters for the purposes of the Tasmanian Regional Council elections. He argued that the conferral of such a function on a body such as the Committee was inconsistent with various provisions of the ATSIC Act, and could not therefore fall within the rule-making power in s 113, which is subject to an express limitation that any rules made must be "not inconsistent with this Act". 23 The first provision identified was s 101. The argument is that, if a person in fact satisfies the criteria laid down by that section, and is therefore given by the section an entitlement to vote, it is inconsistent with that section to have the entitlement removed by a decision of the Committee. Conversely, if a person does not satisfy the criteria in s 101, no power could be given to the Committee to confer on the person an entitlement to vote at a Regional Council Election. Counsel for the applicants also drew attention to the jurisdiction conferred on the Court by s 140 and Sch 4, particularly to the provision in item 2(1) of Sch 4, under which the validity of any election, or of the declaration of a poll for an election, may be disputed by petition addressed to the Court "and not otherwise". He argued that the purported conferral on the Committee of the power to decide who should be entitled to vote is inconsistent with the conferral on the Court of exclusive jurisdiction to deal with, among other things, questions of eligibility to vote. 24 Further, it was argued that s 113(1)(a) limits the grant of the rule-making power to the making of rules prescribing "the manner" in which Regional Council elections are to be conducted. To commit the decision on eligibility to vote to the Committee was to go beyond the manner of conduct of the Tasmanian Regional Council election and to enter upon the substance of voting entitlements. 25 Counsel for the applicants also argued that, although s 113(2)(a) refers specifically to the making of rules about "the use" of an electoral roll to establish an entitlement to vote or to make a record of the persons who have cast votes, the power extended only to the making of rules about the use of an existing roll, and not to the making of rules conferring power on anyone to make a roll. The argument was that s 113(2)(a), so far as it concerns the use of an electoral roll, relates only to establishing an entitlement to vote at the time when voting takes place, or making a record of persons who have already cast votes, so that it must refer to a pre-existing roll and a pre-existing entitlement.

The validity of the rules 26 It may be accepted that the criteria for entitlement to vote at a Regional Council election are to be found in s 101 of the ATSIC Act. Any attempts to make a rule excluding someone who met those entitlements from having a right to vote, or granting a right to vote to someone who did not meet those criteria, would be outside the rule-making power. It would be inconsistent with the ATSIC Act. 27 So much having been said, it is necessary to understand the provisions of the ATSIC Act and the RCE Rules in their context. If any election is to be conducted in which the right to vote is to be restricted, there must exist a machinery by which decisions can be made as to whether particular persons fall within the restricted class of voters, or outside that class. In other words, provision must be made, by some means or other, for the giving of an opportunity to vote to those who meet the criteria of eligibility to vote, and only to such persons. In most elections, this is done by the creation of a list of persons who are thought to be eligible to be given ballot papers. Those responsible for the provision of ballot papers, either by handing them to voters attending polling booths, or by posting them to voters, then rely on the list to ascertain whether a ballot paper should be made available to a particular person. Such a list is usually described as an electoral roll. Generally, only those whose names appear on it will be considered to be eligible to vote. All those whose names appear on the electoral roll will be so considered. Of course, alternative methods are possible. The ATSIC Act itself contemplates that eligibility to vote might be established by the provision to those who meet the criteria in s 101 of cards, known as voting cards, which they can then produce to identify themselves to the people who hand out ballot papers at polling booths. 28 Whatever method be adopted, it is necessary that someone make a decision in relation to each person whose name is placed on the electoral roll, or to whom a voting card is issued, as to whether that person falls within the eligibility criteria. Such a decision is a decision of an administrative character, made as part of the conduct of an election. Without the making of many such decisions, the conduct of a lawful election will simply be impossible. 29 It is necessary, therefore, that someone be entrusted with the making of such a decision. If there were no Pt 8 of the RCE Rules, the decision as to who should receive a ballot paper, and who should not, would fall to be made by the Electoral Commission, which has responsibility pursuant to s 100 of the ATSIC Act for the conduct of Regional Council elections. Part 8 of the RCE Rules in essence confers the power to make those administrative decisions on the Committee and sets up a procedure for the making of those decisions. It is difficult to see that the allocation of that function to the Committee, rather than to the Electoral Commission, and the establishment of procedures for its exercise, could cause the rules concerned to travel beyond the rule-making power. The administrative decisions involved in establishing the eligibility of voters are plainly a vital part of the conduct of an election where a ballot is required. Rules governing them are very much part of the "manner" in which the election is to be conducted, within the meaning of s 113(1). 30 The reference to "the use of an electoral roll" in s 113(2)(a) of the ATSIC Act is sufficiently broad to include the making of an electoral roll. Because no use can be made of an electoral roll unless it exists, the making of such a roll must be regarded as an aspect of its use. If this were not so, and s 113(2)(a) were to be regarded as confined in the way submitted on behalf of the applicants, it would not constitute a limit on the rule-making power given by s 113(1)(a). Subsection (2) provides expressly that the list of specific matters on which rules can be made is not to limit the power in subsection (1). 31 The administrative decisions that result in ballot papers being sent to those determined to be eligible to vote, and not to those determined not to be eligible to vote, do not and cannot involve ultimate determinations of the eligibility or ineligibility of such persons to vote. To purport to confer on the Committee power to make such ultimate determinations would be to make a purported grant of judicial power, which would, for constitutional and other reasons, be beyond the rule-making power in s 113 of the ATSIC Act. Part 8 of the RCE Rules does not involve any purported grant of the power to make ultimate determinations. It does not attempt to take away from this Court any of the jurisdiction conferred by s 140 and Sch 4. If the process of administrative decision-making should result in persons who do not satisfy the criteria in s 101 of the ATSIC Act voting, or persons who do satisfy those criteria, and who have applied to vote, being denied the right to vote, then the jurisdiction of the Court may be invoked. In those events, if the Court were to find that the Roll had been prepared incorrectly, so that the names of eligible voters were omitted from it or the names of ineligible persons were included on it, the Court may reach the conclusion that an illegal practice has occurred in connection with the election. The Court might declare that persons who were returned were not duly elected or that the election is absolutely void. It would only do so if the result of the election were likely to be affected by the illegal practice concerned. Item 11 in Sch 4 to the ATSIC Act makes it clear that the Court's powers extend to examining the accuracy of the roll used in the conduct of any election under the ATSIC Act, but not the Commonwealth Electoral Roll. It is therefore plain that any administrative decision to place a person's name on an electoral roll for a Regional Council election, on the basis that the person is considered to be eligible, or to omit a person's name from that roll on the basis that the person is considered to be ineligible, cannot be determinative of eligibility in an ultimate sense. It is perhaps unfortunate, and potentially productive of expense, to leave the ultimate determination of the eligibility of voters to the Court, and until after the results of an election have been declared. The desire to avoid the necessity for the Court's power to be invoked appears to have been the motivation for the creation of Pt 8 of the RCE Rules. To attempt to make the electoral roll conclusive as to eligibility to vote appears to be impossible, however. 32 No doubt, any procedure followed to establish entitlement to vote in the conduct of an election will be designed to produce the outcome that all persons entitled to vote and seeking to exercise their entitlements, and no others, do vote. As a practical matter, however, perfection is unattainable. Inevitably, in the conduct of any election, mistakes will be made. The result is that people who turn out to be eligible to vote may seek to vote and be denied ballot papers. It may be that people who are not eligible to vote will receive ballot papers. This does not mean that an electoral roll is conclusive as to the right to vote. It only means that perfection has not been achieved. If the imperfections in the roll are sufficiently gross, and the Court's jurisdiction is invoked, the Court can order that another attempt be made. No doubt if that were done, the Court's determination as to eligibility to vote would be relied upon in the compilation of the roll used. 33 Part 8 of the RCE Rules therefore does not travel beyond the limits of the rule-making power in s 113 of the ATSIC Act to the extent to which it commits the making of decisions as to the content of the Indigenous Electors Roll to the Committee, and to the extent to which it sets up a procedure to be followed prior to the making of such decisions. The rules do not purport to make the decisions of the Committee in any sense conclusive as to whether or not a person meets the criteria in s 101 of the ATSIC Act. They merely contain machinery for the preparation of a roll designed to ensure that only persons who do meet those criteria are given the opportunity to vote, and that all such persons who seek that opportunity are able to exercise it. 34 In the course of argument, reference was made to other aspects of Pt 8 of the RCE Rules. It may be that the attempt by r 170 and item 3 of Sch 2 to the RCE Rules to confine eligibility to nominate to those who are enrolled on the Indigenous Electors Roll would be inconsistent with s 102 of the ATSIC Act, which sets out the qualifications to stand for election and to be elected as a member for a Regional Council ward. It may be that the offences found in Div 5 of Pt 8 of the RCE Rules travel beyond the rule-making power in s 113, particularly those relating to the disclosure of the contents of the Provisional Roll or the Indigenous Electors Roll, and the use of information on those rolls. These issues were not argued fully in the proceeding. It may be that they cannot be determined in the present proceeding in any event, because s 45(1) of the AAT Act only permits referral of a question of law to the Court if that question of law arises in a proceeding before the AAT. The stage of accepting or rejection of nominations has not yet been reached in the 2002 Tasmanian Regional Council election. There is no indication that any decision has been made to charge anybody with any relevant offence. The validity of those particular provisions has not arisen in the proceedings before the AAT in which the question of law was referred to the Court. 35 It may be that criticisms can be made of the scheme of Pt 8 of the RCE Rules. One obvious criticism is that the Committee is only empowered to remove the name of a person from the Provisional Roll if an objection has been made and accepted by the Committee. This limit on the Committee's power might lead to strange results. For instance, even if the Court had decided, in an earlier proceeding, that a particular person was not a person of the Aboriginal race, in the absence of objection the Committee could not remove that person's name from the Provisional Roll. Similarly, if the Committee were to decide, in the face of a submission of the person the subject of the objection that he or she is not eligible, it does not appear to be open to the Committee to remove the name of anyone else who might be ineligible for the same reason, such as a sibling of the person whose name is removed. It might also be that the Minister's choice of the persons who constitute the Committee is controversial. It would not be surprising if this were so, given the extent of the feeling that issues of the identification of people as Aboriginal people are capable of generating. Perceived defects in the scheme of Pt 8, or perceived inadequacies in the execution of that scheme, are not grounds on which the Court can declare the provisions of Pt 8 to be invalid.

Conclusion and orders 36 For these reasons, the Court must reject the challenge mounted by the applicants to the validity of Part 8 of the RCE Rules. 37 The manner in which the question referred to the Court is stated makes it difficult to answer with a simple negative. The Court is asked to decide whether Pt 8 of the RCE Rules, or any part of it, is invalid. The order answering the question needs to be framed so as to reflect the fact that the Court has only been invited to look at limited aspects of Pt 8. It would not be appropriate to give a simple negative answer to the question, which might be seen as giving the Court's endorsement to the whole of Pt 8 and to Pt 8 in all respects. It is not open to the Court to recast the question. The appropriate order to make, therefore, is one that identifies the basis on which Pt 8 has been challenged and rejects that challenge, but leaves the question otherwise unanswered. 38 The appropriate order of the Court, therefore, is that the question be answered as follows: Question: Whether all or part of Part 8 of the Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 are void or invalid as not being authorised by the provisions of section 113 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Answer: To the extent to which the provisions of Part 8 of the Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 authorise the Independent Indigenous Advisory Committee established under rule 156 to consider and decide whether persons applying to be included on the Indigenous Electors Roll are to be so included, and to the extent to which those provisions set up procedures to enable the Independent Indigenous Advisory Committee to perform that function, those provisions are neither void nor invalid as not being authorised by the provisions of section 113 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Otherwise it is inappropriate to answer the question. 39 The question of costs is not easy. The applicants have been unsuccessful in the Court. The Committee appeared by counsel to contend for the validity of Part 8 of the RCE Rules. The contentions of the Committee have been upheld by the Court. The applicants did raise the question of the validity of Pt 8 before the AAT, but the initiative to refer the question of law to the Court at this stage seems to have come from the AAT itself. In effect, counsel for the applicants appeared before the Court to assist the Court in its deliberations on that question. In the circumstances, it would be unfair to inflict an order for costs on the applicants as if they were unsuccessful applicants to the Court. This is therefore a case in which the normal rule that costs follow the event should not apply. There should be no order as to costs of the proceeding. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

IN THE MATTER of an application to the Administrative Appeals Tribunal

AND: THE INDEPENDENT INDIGENOUS ADVISORY COMMITTEE

MERKEL AND DOWNES JJ: 40 The question of law that has been referred to a Full Court by the Administrative Appeals Tribunal ("the AAT") pursuant to s 45(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is whether all or part of Pt 8 of the Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 ("the Regional Council Election Rules") is void or invalid as not being authorised by the provisions of s 113 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the ATSIC Act"). 41 The ATSIC Act, inter alia, established the Aboriginal and Torres Strait Islander Commission ("ATSIC"). The objects of the Act, which are set out in s 3, include ensuring the participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them and the promotion of the development of self-management and self-sufficiency among Aboriginal persons and Torres Strait Islanders. The ATSIC Act also established Regional Councils as part of the scheme of self-management promoted by the Act. A Regional Council is to be elected for different regions, one of which includes Hobart in the zone of Tasmania: see ss 91(1), 130(1) and Sch 1 of the ATSIC Act. Section 100A of the ATSIC Act provides for Regional Council election rules made under the Act to divide a region into wards. 42 Section 100 of the ATSIC Act provides for Regional Council elections to be conducted by the Australian Electoral Commission in accordance with the ATSIC Act and the Regional Council election rules in force at the beginning of the election period. Section 101 of the ATSIC Act provides: "Persons entitled to vote at Regional Council elections A person is entitled to vote at a Regional Council ward election if and only if: (a) the person is an Aboriginal person or a Torres Strait Islander; and (b) either: (i) the person's name is on the Commonwealth Electoral Roll and the person's place of living as shown on that Roll is within the ward concerned; or (ii) the person is entitled to vote at the election pursuant to rules made under subsection 113(3)." The expression "Aboriginal person" is defined in s 4(1) as meaning a person of the Aboriginal race of Australia. Section 113(3) is not relevant to the present case. 43 Section 102(1) provides that a person is not qualified to stand for election, or to be elected, as a member for a Regional Council ward if, inter alia, the person is not entitled to vote at the Regional Council ward election concerned or the person does not live in the ward. 44 Section 113 of the ATSIC Act, relevantly, provides: "Rules for conduct of elections (1) The Minister may, after consulting the Aboriginal and Torres Strait Islander Commission and the Electoral Commissioner, make rules, not inconsistent with this Act, prescribing: (a) the manner in which Regional Council elections are to be conducted … (2) The matters that may be dealt with in rules under subsection (1) include, but are not limited to, the following matters: (a) the use of an electoral roll or voter cards to establish an entitlement to vote or to make a record of the persons who have cast votes; (b) the functions of Aboriginal and Torres Strait Islander liaison officers in connection with the determination of a person's entitlement to vote; (c) the nomination of candidates for election; (d) ballot papers and forms; (e) postal voting; (f) mobile polling, including the appointment and duties of mobile polling teams and matters relating to polling by such teams; (g) confidentiality of voting; (h) the employment by the Australian Electoral Commission of staff, including polling staff, in connection with elections; (j) the scrutiny and counting of votes; (k) the declaration of the poll." 45 Section 140 provides for a dispute in relation to, inter alia, a Regional Council election to be resolved in accordance with Sch 4. Schedule 4 provides for the validity of any election to be disputed by a petition addressed to the Federal Court, which is conferred with jurisdiction to try election petitions. The jurisdiction of the Court includes declaring that a person returned was not duly elected and declaring an election void on the ground of any illegal practice, but the Court is not to make such a declaration unless satisfied that the result of the election was likely to be affected and it is just that the candidate should be declared not to be duly elected or that the election should be declared void: see cll 2(1) and 12 of Sch 4. An illegal practice is defined in cl 1(1) of Sch 4 as meaning, inter alia, a contravention of the ATSIC Act or the Regional Council election rules. 46 The Regional Council Election Rules, made by the Minister under s 113, provided for the manner in which elections for Regional Councils throughout Australia were to be conducted. Problems arose in relation to determining whether particular persons were Aboriginal persons for the purposes of voting at the previous Regional Council election in Tasmania: see Shaw v Wolf (1998) 83 FCR 113 ("Shaw v Wolf"). It appears that, as a result of observations made in Shaw v Wolf (at 137) as to the desirability of a determination of a person's Aboriginal identity being made by independently constituted indigenous bodies, the Minister amended the Regional Council Election Rules by adding Pt 8, which provided for the creation and use of an Indigenous Electors Roll for the 2002 Tasmanian Regional Council elections, "to ensure that only indigenous persons may vote in those elections": see r 141. The rules that are relevant to the issues arising in the present case have been set out in detail in the reasons for judgment of Gray J and need not be repeated. 47 A dispute has arisen in relation to the use of the Indigenous Electors Roll for the 2002 Tasmanian Regional Council election. That dispute resulted in the AAT referring to the Court the question of whether all or part of Pt 8 of the Regional Council Election Rules is valid. 48 The submissions of counsel for the applicant are summarised in the reasons for judgment of Gray J. In substance, counsel for the applicant contends that Pt 8 is inconsistent with s 101 of the ATSIC Act, and is therefore invalid, because under Pt 8 a person's entitlement to vote in the 2002 Tasmanian Regional Council election depended upon a determination by the Independent Indigenous Advisory Committee ("the Committee") of whether a person is an Aboriginal person and is therefore entitled to be placed on the Indigenous Electors Roll, rather than upon the statutory precondition in s 101(a) that the person be an Aboriginal person. It was said that the Committee's decision as to Aboriginality was an additional criterion that was not authorised by the Act. It was also contended that, in so far as Pt 8 provides for the creation and use of an electoral roll, those rules purported to confer substantive, rather than procedural, voting entitlements and therefore went beyond making rules prescribing "the manner in which Regional Council elections are to be conducted": cf Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 at 640. In the course of the hearing a question also arose as to the validity of r 170 in so far as it had the effect of modifying the nomination rules by requiring that a person who nominates for the 2002 Tasmanian Regional Council election must be enrolled on the Indigenous Electors Roll: see r 170 and item 3 of Sch 2. 49 Senior counsel for the respondent contended that Pt 8 fell within the specific rule making powers conferred on the Minister under s 113 and that none of the rules within Pt 8 were inconsistent with the ATSIC Act. 50 The limitations on the power of a subordinate authority to make subordinate legislation were the subject of the following observations by a majority of the High Court in Shanahan v Scott (1957) 96 CLR 245 at 250: "…[The] power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its end." 51 Thus, where subordinate legislation is not confined to the same field of operation as that marked out by the Act itself, but attempts to widen the purposes of the Act and to add a means of carrying them into effect which the Act itself does not contemplate, the subordinate legislation will be invalid: see Willocks v Anderson (1971) 124 CLR 293 at 299-300. 52 The starting point for any consideration of the validity of Pt 8 of the Regional Council Election Rules is to determine the true nature and purpose of the rule-making power in s 113: see South Australia v Tanner (1989) 166 CLR 161 at 164-165. An important consideration will be the degree to which the legislature has disclosed an intention that rules made under s 113 may deal with any particular subject with which the ATSIC Act is concerned: cf Morton v Union Steamship Co of New Zealand (1951) 83 CLR 402 at 410. 53 Section 101 of the ATSIC Act provides that a person is entitled to vote in a Regional Council election if and only if the person is an Aboriginal person or a Torres Strait Islander. Section 102 provides, inter alia, that a person is not qualified to stand for election as a member for a Regional Council ward if the person is not entitled to vote in the ward election. Section 113(1)(a) provides for the Minister to make rules that are not inconsistent with the Act, prescribing the manner in which a Regional Council election is to be conducted. The matters that may be dealt with in rules made under s 113 include the use of an electoral roll "to establish an entitlement to vote" (s 113(2)(a)) and "the nomination of candidates for election" (s 113(2)(c)). Thus, s 113(2)(a) discloses a legislative intention that rules may deal with establishment of an entitlement to vote which is a criterion for eligibility to vote (s 101) and ineligibility to stand for election (s 102(1)). Thus, there is no basis for giving the rule-making power conferred by ss 113(1)(a), 2(a) and 2(c) a narrow or limited meaning. 54 The purpose of Pt 8 is to provide for the establishment of an Indigenous Electors Roll for the 2002 Tasmanian Regional Council elections to ensure that only indigenous persons may vote in those elections (r 141). The roll establishes the entitlement to vote of persons applying to enrol as voters in the 2002 Tasmanian Regional Council election. An incident of the use of such a roll for that purpose is its creation in a manner that establishes the entitlement to vote of persons whose names are on the roll. The provisions in Pt 8 of the Regional Council Election Rules concerning the establishment of a Provisional Roll, decisions of the Committee as to the entitlement of a person to be on the final roll (the Indigenous Electors Roll), and the review of Committee decisions by the AAT in order to resolve disputes concerning a person's entitlement to be on the final roll, and therefore to vote at a Regional Council election, may properly be characterised as provisions concerning, or incidental to, the use of the roll "to establish an entitlement to vote" at the 2002 Tasmania Regional Council election. 55 Of course, if a rule provides a substantive, rather than a procedural, criterion for enrolment that was not provided for in the ATSIC Act, the rule providing for that criterion might be adding a means of carrying the Act into effect which the Act itself did not contemplate and may therefore be inconsistent with the Act and invalid. However, properly construed, Pt 8 does not provide for a criterion for eligibility to be on the Indigenous Electors Roll that is inconsistent with s 101. The provisions for eligibility for enrolment (rr 144-146 and the enrolment form), and the determination by the Committee of objections to enrolment (rr 148-151) are based upon the requirement in s 101 that only Aboriginal persons or Torres Strait Islanders are eligible to vote. Rule 151(5) specifically requires that the Committee's decision on eligibility, where there has been an objection, be based upon its satisfaction, on the balance of probability, as to whether the person in question is an indigenous person, which is defined in r 142 to mean an Aboriginal person or a Torres Strait Islander. As the AAT "stands in the shoes" of the Committee when reviewing the Committee's decision under r 166 (see Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99 at 106) it is bound to apply the same criterion. 56 As was made clear in Shaw v Wolf (at 117-122) the question of whether a person is an Aboriginal person can be a vexed and difficult question requiring inquiry into the person's descent, self-identification and communal recognition as an Aboriginal person. The legislature, by enacting s 113(2)(a), recognised the difficulties inherent in the determination of a person's entitlement to vote, and specifically provided for rules to be made to establish that entitlement. It is implicit in the use of an electoral roll to establish an entitlement to vote that there be a procedure for the establishment and determination of a person's entitlement to be on the roll, particularly where that person's entitlement to vote is in dispute. As such a determination is required by the Regional Council Election Rules to be made prior to the 2002 Tasmanian Regional Council election which is to be conducted by postal vote (see r 161(1)) the administrative processes for enrolment provided for under the Rules, including the determination by the Committee of a person's entitlement to be on the roll, and review of the Committee's decision by the AAT, are within the purposes of the rule-making power in s 113 and do not extend the scope or operation of the ATSIC Act or depart from or vary the plan which the Act has adopted to achieve its ends. Accordingly, in so far as the rules in Pt 8 provide for the establishment and use of the Indigenous Electors Roll to establish a person's entitlement to vote at the 2002 Tasmanian Regional Council election, the rules are within the rule-making power conferred by s 113(1) and (2)(a) and are valid. 57 As explained above, the rules in relation to the use of the Indigenous Electors Roll to establish a person's entitlement to vote are also relevant to a person's entitlement to nominate and stand for election. Under s 102(1)(a) a person is not qualified to stand for election if that person is not entitled to vote at the relevant Regional Council ward election. Rule 170 which is in Pt 8 of the Regional Council Election Rules, by incorporating the amendments to those Rules in Schedule 2, has modified the nomination rules in Pt 2 of the Rules by requiring that a person who nominates for the 2002 Tasmanian Regional Council election be enrolled on the Indigenous Electors Roll (item 3 of Sch 2 inserting a new sub-rule 8(3)). It is arguable that the addition of sub-rule 8(3) has added an additional substantive criterion for nomination, which is not provided for in ss 101 and 102 of the ATSIC Act and is therefore inconsistent with those sections. However, the preferable view is that the rule-making power in s 113(2)(a) to "establish an entitlement to vote" is to enable the eligibility of voters to be established for the purposes of s 101 and the ineligibility of any candidate to stand for election to be established for the purposes of s 102(1)(a). Thus sub-rule 8(3), as incorporated under r 170, is a rule that falls within ss 113(1), 2(a) and 2(c) as it provides a means by which the statutory criterion in s 102(1)(a) of ineligibility to stand for election may be established, in much the same way as the Rules in Pt 8 provide a means by which a criterion to be an eligible voter under s 101 may be established. Accordingly, r 170, in so far as it incorporates r 8(3), is also valid. 58 In the course of submissions a question arose as to whether the Indigenous Electors Roll used by the Commonwealth Electoral Commission to determine a person's entitlement to participate in the postal vote for the 2002 Tasmanian Regional Council elections could establish the person's entitlement to vote for the purposes of an election petition under Sch 4 of the ATSIC Act. The respondent argued that if there is an election petition under Sch 4 of the ATSIC Act after the Tasmanian election the Court can determine a person's entitlement in much the same manner as occurred in Shaw v Wolf. 59 The nature and extent of the Court's jurisdiction on an election petition is set out in Sch 4. If it is contended that there has been an illegal practice because a non-Aboriginal person has contravened s 101 of the ATSIC Act or the Regional Council Election Rules by voting in the election the question arises as to whether the appearance of that person's name on the Indigenous Electors Roll is sufficient to establish the person's entitlement to vote. Absent an objection, a person's entitlement to be on the Roll will have arisen as a result of the person completing an election enrolment application containing a declaration that the person is eligible to enrol. If that person is subsequently found to have been ineligible to enrol then the declaration will have been erroneous, even if unintentionally so, and there may have been a contravention of s 101 of the Act, and possibly the Regional Council Election Rules. 60 The other situation that might arise is where a person's entitlement to be on the Roll has been objected to and the person's eligibility to vote has then been the subject of a determination in the person's favour by the Committee or the AAT. In Healey v Minister for Health (1955) 1 QB 221 ("Healey") the Court of Appeal considered whether a determination by a Minister under a statutory regulation that a person was not a mental health officer within the meaning of the regulations could be challenged in a proceeding in the court for a declaration that the person was a mental health officer within the meaning of the regulations. The Court of Appeal held that the proceeding was to be dismissed as the plaintiff, by his pleading, did not ask for a declaration that the Minister's determination was invalid nor did it assert that the determination of the Minister was wrong in law or that the Minister lacked jurisdiction. Rather, the plaintiff was taken to be inviting the court to assume an appellate jurisdiction, which it had not been given and could not create: see Denning L.J. at 228, Morris L.J. at 230-231 and Parker L.J. at 232-233. 61 In the present case the ATSIC Act has conferred original jurisdiction on the Court under Sch 4 in respect of an election dispute so the present statutory framework is plainly distinguishable from that considered in Healey. However, the question remains whether a person who was validly placed on the Indigenous Electors Roll can be found to have voted in contravention of the ATSIC Act. Section 113(8) provides that rules made under s 113 are a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth). Thus, when the rules are not disallowed by the Parliament they will have effect as legislative instruments. It is arguable that, in that context, ss 101 and 113 should be construed on the prima facie basis that they are intended to give effect to harmonious goals (see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382) so that if a person's name validly appears on the Indigenous Electors Roll in accordance with a valid rule, the person in question might be seen to have had an entitlement under the ATSIC Act and the Regional Council Election Rules to vote at the election. The question in such a case might be whether a challenge under Sch 4 is to be on the basis of the Court's supervisory jurisdiction or on the basis of a hearing de novo on the merits. As those issues, which are essentially ones of construction of ss 101 and 113, were not the subject of any detailed argument and their resolution is not necessary for a decision on the validity of all or part of Pt 8 of the Regional Council Election Rules, it is inappropriate to decide them on the present application. 62 For the above reasons we have concluded that, in so far as the rules in Pt 8 of the Regional Council Election Rules provide for the creation and use of the Indigenous Electors Roll to establish a person's entitlement to vote or to establish whether a person is ineligible to stand as a candidate for election at the 2002 Tasmanian Regional Council Elections, those rules are valid. As many of the rules in Pt 8 were not the subject of argument or challenge it is inappropriate to answer the question asked other than by reference to the matters raised in argument. Accordingly, the question of law referred to the Court should be answered as follows: (i) To the extent to which the rules in Pt 8 of the Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 provide for the creation and use of the Indigenous Electors Roll to establish a person's entitlement to vote or to establish whether a person is ineligible to stand as a candidate for election at the 2002 Tasmanian Regional Council election those rules are valid. (iii) Otherwise it is inappropriate to answer the question. 63 We agree, for the reasons stated by Gray J, that the parties should bear their own costs of the application to the Full Court. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Merkel and Downes.

Associate: Dated: 16 October 2002 Counsel for the Applicant: Mr M O'Farrell

Solicitor for the Respondent: Australian Government Solicitor

Aboriginal and Torres Strait Islander Commission Act 1989(Cth)ss 101, 102, 113

Administrative Appeals Act 1975(Cth)

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