THE REGISTRAR OF ABORIGINAL CORPORATIONS v JEANETTE BARKER

Federal Court of Australia|1997-12-23|Before: Whitlam J, Davies J, Dixon J, Mason CJ, Dawson JJ, Branson JJ

REASONS FOR JUDGMENT Davies J: The issue in this appeal is whether the Registrar of Aboriginal Corporations, who called meetings for the election of the members of the Governing Committees of each of the Northern Star Aboriginal Corporation and the North Star Construction Aboriginal Corporation, was entitled to specify, as he did, that: "No ... proxy votes will be accepted for the election." The two corporations, which had been incorporated under the Aboriginal Councils and Associations Act 1976 (Cth) ("the Act"), had each been under the control of an Administrator appointed under s 71 of the Act. Section 73 of the Act provides that, on the appointment of an Administrator, all offices of the Governing Committee of an Association become vacant, and that had occurred. As the time was approaching when it would be no longer necessary for the Administrator to conduct the affairs of the Corporations, the Registrar was required to call an election. Section 77D of the Act provided: "77D. If the Registrar is satisfied that it is no longer necessary for the Administrator to conduct the affairs of the corporation, the Registrar must conduct an election to fill the offices of the councillors or the members of the Governing Committee, as the case may be." Section 77D does not prescribe the means by which the election should be conducted. Accordingly, the section necessarily implies that the election should be conducted in accordance with the ordinary provisions of the Act and the rules of the Association, insofar as that is appropriate. That is because the matter of elections is dealt with in Part IV of the Act and in the rules of an Association, rather than in Part V of the Act, which deals with Administration. An election called under s 77D is not called for the purposes of an Administration, but for the purpose of returning the corporation to normality. The power conferred upon the Registrar by s 77D is a power to be exercised "for the benefit of all the members of the company", to use the expression of Dixon J in Peters' American Delicacy Company Ltd v Heath (1939) 61 CLR 457 at 504-5, or "for the benefit of the company as a whole", to use the words of Mason CJ, Brennan, Deane & Dawson JJ in Gambotto v W C P Limited (1995) 182 CLR 432 at 443-4. Therefore, the interests of all members must be respected, including their right to nominate a proxy if the rules so provide. The rules of a corporation are its constitution and are regarded as a statutory contract between the corporation and each member and between the members inter se: Hickman v Kent or Romney Marsh Sheep-Breeders' Association [1915] 1 Ch 881; Rayfield v Hands [1960] Ch 1. Section 47(2) of the Act expressly so provides. As the rules of each corporation provided for the election of the members of the Governing Committee to take place at general meetings and made provision for proxy votes, the members were entitled to have the procedure as laid down in the rules complied with. In Peters' American Delicacy Company v Heath at 504, Dixon J went so far as to describe a shareholder's right to vote as "an incident of property". In the case of the corporations there were no shares; but each member's right to vote at a general meeting of the corporation was a right which the Registrar should have respected. The rules of the Corporation provided, inter alia: "9.(1) The Governing Committee of the Association shall be a committee of not less than five members. 9.(2) The members of the Committee shall be elected at the first general meeting of the Association and thereafter at each annual general meeting and shall be elegible for re-election. Except as otherwise provided in these rules, the members of the Committee shall hold office until the next annual general meeting."

As the rules provided for the election of members of the Governing Committee at a General Meeting, it was appropriate that a General Meeting of the members of each corporation be called to elect the members of its Governing Committee. The mechanism for doing this was provided by s 58B(4) of the Act which provided: "(4) The Registrar may call a special general meeting at any time if, in the opinion of the Registrar, there is a need to do so." At a meeting so called, a number of the rules of the corporations would be applicable. They included: "16.(1) Questions arising at any general meeting of the Association or any meeting of the Committee shall be decided by a majority of votes and each member present shall have one vote. Voting shall be by show of hands unless the meeting otherwise decides a secret ballot is necessary. ... 16.(2) At general meetings, any member shall be entitled to appoint another member as proxy by notice given to the Secretary at least 24 hours before the meeting in respect of which the proxy is appointed (but no member shall hold more than 3 proxies). The notice appointing the proxy shall be in the form set out in the Appendix to these rules."

It may be that exceptional circumstances could arise which would make the application of the ordinary provisions of the rules and of the Act inappropriate to an election called under s 77D. I need not consider that point. However, there was nothing in the circumstances of the two subject corporations which made it inappropriate to give effect to the ordinary provisions of the Act and of the rules. The Registrar took the view that a meeting should be called. He called a meeting of all members of each corporation but he indicated in his notice that he did not propose to allow postal or proxy votes, which insofar as proxy votes were concerned, was inconsistent with rule 16(2). The reason why the Registrar decided that he would not allow proxy votes was stated by an officer of the Office of the Registrar of Aboriginal Corporations to be as follows: "From enquiries made of the Registrar I am informed by him and verily believe that since section 77D of the Act became operative, the Registrar has adopted the policy that in the first instance no election conducted pursuant to that section should allow proxy votes. The rationale behind such a policy is: to ensure that no subsequent issue could be raised as to the legitimacy of any elected commitee person on the basis of the invalidity of any proxy vote; and to encourage members to attend and not be frightened to stand for election to obtain a wide representation of the membership." However, this reason shows merely that the Registrar did not favour proxy votes. He considered that they led to disputes about the validity of the proxies and discouraged members of corporations from attending. The issue of proxy votes was not a matter for the Registrar's preference. He was conducting elections of the members of the Governing Committees. The members were entitled to have the elections held in accordance with the rules of the corporations, not in accordance with the whims of the Registrar. The Registrar had no entitlement to disenfranchise members who were unable to attend Brewarrina on the day. It should be noted, moreover, that s 58B(8) of the Act specifically provides: "(8) In addition to any other matter relating to general meetings, the Rules must make provision for and in relation to: ... (d) voting by proxy."

Accordingly, the legislature has indicated its intention that voting at general meetings of Aboriginal Corporations may be undertaken by proxy. The course stipulated by the Registrar was inconsistent with this expression of legislative intent, as well as with rule 16(2). The legislation recognises, of course, the tyrannies of distance and the difficulties which some members, who live or work elsewhere, might have in attending a meeting in a particular town on a stipulated day. The Registar effectively proposed an election by those members who were resident in Brewarrina and could attend on the day. Section 77D did not have that concept in mind. It had in mind an election of the members of the Governing Committees in which all members of the Corporation would be able to vote. Accordingly, the Registrar erred in his interpretation of the Act and misunderstood the factors to which he should have regard. I entirely agree with the order of the trial Judge that: "The elections to fill the offices of the members of the Governing Committee of the Northern Star Aboriginal Corporation and the North Star Construction Aboriginal Corporation be held at a general meeting of each corporation." In the circumstances of this case, a mandatory direction was called for. His Honour did not say so expressly in his order but his Honour had it in mind that each election would be held at a special general meeting of the corporation conducted in accordance with the rules of the corporation. I would dismiss the appeal with costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

NEW SOUTH WALES DISTRICT REGISTRY NO. 1006 of 1997

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT WILCOX J: This is an appeal against a decision of a Judge of this Court, Whitlam J. It raises a short but important point concerning the operation of the Aboriginal Councils and Associations Act 1976. That Act is concerned with the governance of entities described in the Act as "Aboriginal corporations". Aboriginal corporations are of two kinds: Aboriginal councils and incorporated Aboriginal associations. Aboriginal councils are entities formed to provide services (such as housing, water, sewerage, electricity, health and education services and community amenities) to Aboriginal people within a specific geographical area. Incorporated Aboriginal associations are formed to conduct business ventures.

The scheme of the Act Part III of the Act relates to Aboriginal councils, Part IV to incorporated Aboriginal associations. That Part includes a provision (s 58B) dealing with general meetings of associations. Part V of the Act, under which this case arises, deals with the investigation and administration of Aboriginal corporations, that is, both Aboriginal councils and incorporated Aboriginal associations. Part V of the Act comprises ss 68 to 77E. Section 68(1) empowers the Registrar of Aboriginal Corporations, a person appointed by the Minister pursuant to s 4 of the Act, to investigate the affairs of an Aboriginal corporation where the Registrar suspects, on reasonable grounds, that the corporation has failed to comply with a provision of the Act, the regulations or the corporation's Rules, or there has been an irregularity in the corporation's financial affairs. Section 69(2) and s 70 confer some specific investigation powers. Section 71 empowers the Registrar, under specified circumstances, to appoint an Administrator. The effect of such an appointment is stated in s 73: "73 On the appointment of the Administrator: (a) the office of the public officer of the corporation becomes vacant; and (b) if the corporation is an Aboriginal Council - all offices of the councillors constituting the Council become vacant; and (c) if the corporation is an Incorporated Aboriginal Association - all offices of the members of the Government Committee of the Association become vacant." Section 75 deals with an Administrator's functions: "75 The Administrator is responsible for the conduct of the affairs of the corporation and in addition has the functions and duties of the public officer." The Registrar supervises the Administrator in the sense that the Registrar may require the Administrator to provide information (s 77C) and may terminate (s 77D) or cancel (s 77E) the Administrator's appointment. Section 77D is critical to this case, so I set it out in full: "77D If the Registrar is satisfied that it is no longer necessary for the Administrator to conduct the affairs of the corporation, the Registrar must conduct an election to fill the offices of the councillors or the members of the Governing Committee, as the case may be." The facts The respondent to the appeal is Jeanette Barker. She is a member of two Aboriginal associations incorporated under Part IV of the Aboriginal Councils and Associations Act: Northern Star Aboriginal Corporation and North Star Construction Aboriginal Corporation. Until 21 May 1997 Ms Barker was a member of the Governing Committee of each association. On that day the Registrar of Aboriginal Corporations appointed Allan Nicholls as Administrator of each association. Pursuant to s 73(c) of the Act, all offices of the members of the Governing Committee of each association became vacant. By late October 1997, the Registrar had become satisfied it was no longer necessary for an Administrator to conduct the affairs of either association. So s 77D of the Act required him to conduct an election to fill the offices of members of the two Governing Committees. He decided the appropriate way of doing this was to invite members of the association to meet in a hall at Brewarrina. Most, but not all, of the members of the associations reside in Brewarrina. On a date not disclosed by the evidence, the Registrar issued two notices, one in relation to each association. Ignoring formal parts, the notice relating to Northern Star Aboriginal Corporation was in this form: "I, Noureddine Bouhafs, Registrar of Aboriginal Corporations, an satisfied that it is no longer necessary for an Administrator to conduct the affairs of the Northern Star Aboriginal Corporation. Accordingly, pursuant to Section 77D of the Aboriginal Councils and Associations Act 1976, I am required to conduct an election for membership of the Governing Committee, which will assume control of the Corporation when the appointment of the Administrator is cancelled. I therefore give notice that an election will be held for the purpose of filling the offices of the members of the Governing Committee. Details of the election are as follows: Place: Senior Citizens Hall Sandon Street Brewarrina, NSW Time: 10.00am Date: Tuesday 11 November 1997 Only those persons listed on the register of members of the Corporation maintained by the Administrator will be entitled to vote at the election. If any person is uncertain as to their membership status, they should contact the Administrator, Mr Allan Nicholls, on (02) 6884 1077 to discuss the matter further. To participate in the election, completed membership application forms must be accepted by the Administrator by 5.00pm on 7 November 1997. No postal votes or proxy votes will be accepted for the election." The notice relating to North Star Construction Aboriginal Corporation was in similar terms, except for the name and that it stated the time of the election as "11.00am (or upon completion of Northern Star Election)". It will be observed the notices specified no postal votes or proxy votes would be accepted. Ms Barker objected to this. She contacted the Registrar's office in Canberra but to no avail. The Registrar has adopted a policy that, in the first instance, no election conducted pursuant to s 77D should allow proxy votes. John Glynn, acting Director of the Registration and Compliance Section in the Registrar's office, gave evidence about the reason for the policy: "The rationale behind such a policy is: to ensure that no subsequent issue could be raised as to the legitimacy of any elected committee person on the basis of the invalidity of any proxy vote; and to encourage members to attend and not be frightened to stand for election to obtain a wide representation of the membership." Mr Glynn added: "However, if matters are raised as to the form of the proposed election, the Registrar then considers those matters to determine if they warrant a departure from that initial position. In this instance it was and is considered that the circumstances do not warrant such a departure." Ms Barker took a different view about the situation. Her affidavit sets out information about difficulties that would be encountered by some of her family members and friends in attending at Brewarrina in order to participate in the elections. Without the availability of proxy votes, it seems, some members will be unable to participate in the elections. On 6 November 1997, the dispute regarding proxy votes remaining unresolved, Ms Barker made an application to this Court pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977. In that application, she sought review of the Registrar's decisions not to accept proxy votes for the elections. In relation to each corporation, she sought an order quashing or setting aside the decision and directing the Registrar to permit the use of proxy votes at the election. The application came before Whitlam J for urgent hearing on Monday, 10 November, the day before the proposed elections. His Honour delivered a judgment that same day in which he held elections under s 77D of the Act could take place only at a general meeting of the relevant association, at which the association's Rules would apply. The Rules of each of the subject associations permitted the use of proxies, subject to two limitations. First, only a member could be appointed as proxy for another member. Second, a member could not hold more than three proxies. As the gatherings at Brewarrina had not been called as special general meetings, as Whitlam J thought necessary, they could not proceed on the following day. Whitlam J made the following order: "The elections to fill the offices of the members of the Governing Committee of the Northern Star Aboriginal Corporation and the North Star Construction Aboriginal Corporation be held at a general meeting of each corporation." On 27 November 1997, the Registrar appealed against Whitlam J's decision. The appeal was expedited and came before us on 16 December 1997.

Counsel's submissions The fundamental contention of counsel for the Registrar, Mr John Graves SC and Mr Peter Renehan, is that s 77D confers an unfettered discretion on the Registrar as to the manner of conducting elections to the offices with which the section is concerned. Counsel point out s 77D was introduced into the Act relatively recently, in 1992, as part of a new Part V dealing with investigation and administration of Aboriginal corporations. They say s 77D is not tied to provisions in Part III or Part IV relating to general meetings; in particular, there is no connection between s 77D and s 58B, a provision that lay at the heart of the respondent's successful argument before Whitlam J. That section reads: "58B(1) Subject to this section, the Governing Committee of an Incorporated Aboriginal Association is to call and conduct annual general meetings and special general meetings of the Association as provided in the Rules. (2) An aggrieved member may at any time request the Committee to call a special general meeting. The Committee must do so unless, on application by the Committee, the Registrar considers the request to be frivolous, unreasonable or contrary to the interests of the members of the Association. (3) The Registrar may call a special general meeting if the Committee has advertised it for a particular day but it has not been held for 14 days after that day. (4) The Registrar may call a special general meeting at any time if, in the opinion of the Registrar, there is a need to do so. (5) The Registrar may call a special general meeting if requested to do so in writing by whichever is the greater of: (a) 5 or more members of the Association; or (b) not fewer than 10% of the total number of members of the Association. The Registrar is to conduct the meeting. (6) The Registrar is to determine the periods of notice for meetings called under subsection (4) or (5), having regard to the special needs of the Association. (7) Unless the Registrar determines otherwise, a member cannot vote at a meeting called by the Registrar if: (a) the person became a member after the incorporation of the Association; and (b) the person's name does not appear on the latest list supplied to the Registrar under section 58(3) or (4). (8) In addition to any other matter relating to general meetings, the Rules must make provision for and in relation to: (a) the intervals between meetings; (b) quorums; (c) procedure; (d) voting by proxy. (9) If the Registrar delegates his or her powers under this section, references to the Registrar are to be read accordingly." Rules have been made concerning the matters referred to in subs (8), amongst other matters. The relevant rule, in each case, is rule 15. It relevantly provides: "15(1)The first general meeting of the Association shall be held within three months after incorporation. (2) The first annual general meeting of the Association shall be held within fifteen months after incorporation. Subsequent annual general meetings shall be held within three months after each 30 June. (3 The order of business at the annual general meeting shall be - ... (4) The Committee may call general meetings in addition to the first general meeting and the annual general meeting. (5) Any general meeting other than the first general meeting and the annual general meeting shall be called a special general meeting. The order of business at a special general meeting shall be - (a) to confirm the minutes of the last general meeting, whether the annual general meeting or a special general meeting; (b) to deal with all matters for which the meeting was called; (c) to conduct such other business as the meeting shall determine. (6) Subject to these rules, the place, date and hour of every general meeting shall be determined by the Committee and notice of the meeting, including the purpose of the meeting, shall be given to the members at least seven days prior to the date of the meeting, by any means the Committee considers appropriate. (7) The Chairperson shall, on the written request of five (5) or more members or no fewer than ten percent (10%) of the total number of members of the Association, whichever number is greater, call a special general meeting to be held as soon as practicable but not later than one month after the Chairperson receives the request. (8) An aggrieved member of the Association may at any time request the Governing Committee to call a special general meeting. The Committee must do so unless the Registrar considers the request to be frivolous unreasonable or contrary to the interests of the members of the Association. (9) A request for a special meeting shall state the objects of the meeting and must be signed by the persons making the request. It may consist of several documents, each signed by one or more of the persons making the request. (10) ... (11) ... (12) The Secretary or such person as the meeting appoints shall keep proper minutes of the proceedings of all general meetings. (13) No business shall be transacted at any general meeting unless a quorum of members is present. A quorum shall be the greater of ten (10) or more members or twenty-five percent (25%) of the total membership of the Association. (14) In the absence of a quorum after half an hour of the appointed time for the annual general meeting or general meeting, the meeting shall be dissolved. (15) The Chairman shall cause a notice in writing to be given to members of any special resolution proposed to be passed at a meeting at least twenty-one (21) days prior to the date of the meeting." Counsel for the Registrar suggest difficulties arise if s 77D is construed in such a manner as to require the election it envisages to take place at a special general meeting. Subsection (1) of s 58B propounds a general rule, subject to other subsections, that the Governing Committee is to call and conduct special general meetings. But there will never be a Governing Committee when s 77D becomes operative. The members of the previous Governing Committee will have lost their offices and no new members will yet have been elected; the very purpose of a s 77D election is for that to be done. Accordingly, counsel say, the general rule stated in s 58B(1) cannot apply; it is necessary to look elsewhere for authority to call and conduct the meeting. Subsections (3), (4) and (5) empower the Registrar to call a special general meeting in any of the circumstances to which they refer. There being no extant Governing Committee, subs (3) is unlikely to apply. Subsection (5) applies only at the instance of members, not the Registrar. In practical terms, the only available source of power is likely to be subs (4). That provision would clearly permit the Registrar to call a special general meeting at which a s 77D election could be held, but the subsection does not authorise the Registrar to conduct the meeting. In this respect, subs (4) contrasts with subs (5). Subsection (5) specifically states the Registrar is to conduct a meeting called under that subsection. In the presence of that provision, counsel argue, it cannot be contended the power to call a meeting, under subs (4), implicitly includes power to conduct it; in which case, they ask, who is to do so? Counsel for the Registrar say Whitlam J's reasoning failed to observe the fundamental distinction between a meeting and an election. The word "election" is not defined in the Act but it means no more than to select people for office by voting. An election may be conducted at a meeting, but need not be so conducted. Counsel for Ms Barker, Mr Gregory Jones, meets his opponents' argument about the absence of power to conduct a special general meeting called for the conduct of a s 77D election by referring to s 20 of the Acts Interpretation Act 1901. That section provides: "20. Where in an Act any person holding or occupying a particular office or position is mentioned or referred to in general terms, such mention or reference shall unless the contrary intention appears be deemed to include all persons who at any time occupy for the time being, or perform for the time being the duties of, the said office or position. Mr Jones says, while in office, the Administrator of an association performs for the time being the duties of the offices of members of the Governing Committee. Accordingly, the result of reading s 58B(1) of the Aboriginal Councils and Associations Act with s 20 of the Acts Interpretation Act is that the Administrator is empowered, and required, to conduct any special general meeting called by the Registrar under s 58B(4), including a special general meeting during which the Registrar proposes to conduct a s 77D election. Mr Jones emphasises the Aboriginal Councils and Associations Act, and the rules of corporations governed by that Act, confer important rights on members of those corporations. The rights include the right to elect members of the Governing Committee of an incorporated Aboriginal association. He says Parliament recognised that members of associations would not always be able to attend meetings and, for that reason, inserted in s 58B(8) a requirement that Rules relating to general meetings provide for voting by proxy. To read s 77D in the way urged by counsel for the Registrar, Mr Jones says, would be to frustrate the obvious intent of the Parliament and effectively to deny to some members the exercise of an important right.

Conclusions I agree with elements of both parties' submissions. With respect to the contrary view of Whitlam J, I do not think the Act requires a s 77D election to be conducted at a special general meeting of the association; but I think this is permissible. The problems raised by Mr Graves and Mr Renehan, and arising out of the form of s 58B, are resolved by s 20 of the Acts Interpretation Act. That section applies to a reference in general terms, in any Act, to a person "holding or occupying a particular office or position". That description is wide enough to include the reference to "the Governing Committee" in s 58B(1) of the Aboriginal Councils and Associations Act. Membership of the Governing Committee of an incorporated Aboriginal association is undoubtedly an office or position. The words "Governing Committee" in s 58B(1) plainly refer to the individual members of the Governing Committee, only individuals could call or conduct a meeting. During the period between the appointment of an Administrator and the election of a new Governing Committee at a s 77D election, the Administrator "is responsible for the conduct of the affairs" of the association (s 75); for the time being the Administrator performs the duties of the members of the Governing Committee. Accordingly, I accept Mr Jones' argument that, if a special general meeting is called by the Registrar pursuant to s 58B(4) of the Act during a period when an Administrator is in office, the Administrator is required to conduct the meeting. This statement applies to a special general meeting called for the purpose of conducting a s 77D election, but the Registrar would conduct the actual election. As Mr Jones put the matter, the Registrar would act as a returning officer. The Registrar would be responsible for obtaining nominations, distributing, checking and counting returned ballot papers and declaring the result of the election. The Registrar would be required to rule on any dispute as to the entitlement of a person to be nominated for election or to vote at the election. But the Administrator would attend to other aspects of the meeting, such as those listed in the Rules of these two associations. If the Registrar decided to call a special general meeting for the purpose of conducting a s 77D election, the provisions of the Rules relating to special general meetings would, of course, apply; including provisions relating to quorums, procedure and voting by proxy. Although I think it is open to the Registrar to call a special general meeting for the purpose of conducting a s 77D election, this is not the only available course. As counsel point out, the word "election" is not defined in the Act; it bears its ordinary English meaning. There is nothing in the ordinary connotation of the word that requires participants in an election to gather together for that purpose. The word "election" is routinely used to refer to situations where electors cast their votes at polling booths (as in Parliamentary elections in Australia) or by postal ballot (as in elections of officers of registered industrial organisations). Nothing in the Aboriginal Councils and Associations Act excludes either of these methods of conducting a s 77D election. Although s 77D leaves it to the Registrar to determine how best to conduct the required election, the selected manner must be one that will offer all entitled persons a reasonable opportunity of participation. That is inherent in the word "election". There will be a need for rules governing the election, probably including time limits. However, if the selection process is to amount to an "election", the rules must realistically reflect the situation of the electors. A selection made pursuant to rules that required participants to attend a meeting, or a polling booth, at a place or time that, in practical terms, excluded a significant number of entitled persons from attending would not be an "election" within the meaning of a provision such as s 77D. One further comment is appropriate. In Jackson & Co v Napper (1886) 35 Ch D 162 at 172, Stirling J pointed out it is a general principle of the common law, subject to some particular exceptions, that "every person who is sui juris has a right to appoint an agent for any purpose whatever, and ... can do so when he is exercising a statutory right no less than when he is exercising any other right". This statement has been adopted and applied in Australian courts at an appellate level on at least two occasions: see Ex parte Aston Investments Pty Ltd; Re Hall [1960] SR (NSW) 620 at 626, Chant v Deputy Federal Commissioner of Taxation (1994) 12 ACLC 1,033 at 1,036. In the latter case, the New South Wales Court of Appeal referred to a dictum of Griffith CJ in J M Christie v Permewan Wright & Co Ltd (1904) 1 CLR 693 at 700: "It is a general rule of law that what a person may do himself, he may do by an agent". In Joske's Law and Procedure at Meetings in Australia (8th ed., 1994) at 25, the statement is made that the common law rule about agents does not confer a right to vote by proxy at meetings. However, the learned author goes on to make clear this is the position only where "membership rights (are) accorded on a personal basis, not measured in regard to the member's financial interest in the body". The distinction becomes apparent on reading the primary authority to which the author refers, Attorney General v Scott (1745) 1 Ves Sen 413; 27 ER 1113. That case concerned the selection of a clergyman as incumbent of a parish. Pursuant to a decree of the Lord Chancellor, the selection was to be made by 25 named parishioners. After a dispute as to the result of the selection, the Lord Chancellor held, among other matters, that the task of selection had to be undertaken by the appointed trustees personally; proxies could not be used. The trustees had to hear the candidates and exercise their personal judgment. The case is well removed from the present one, which relates to associations formed for the pecuniary profit of their members, and in which they have a financial interest. Their "membership rights" are measured in terms of their financial interests. As it seems to me, there is nothing in the Aboriginal Councils and Associations Act that excludes the application of the common law principle expounded by Stirling J. If a s 77D election is conducted at a special general meeting of an association, the common law rule is no doubt displaced by the special provisions as to proxies made by the Rules; but if the election is conducted otherwise than at a special general meeting, an elector could authorise another person (whether or not a member of the association) to vote on his or her behalf. As I have indicated, I do not agree with Whitlam J that the elections needed in relation to the Northern Star Aboriginal Corporation and the North Star Construction Aboriginal Corporation must necessarily be held at general meetings of those associations. Accordingly, I would vary the order made by his Honour so as to read: "The elections to fill the offices of the Governing Committee of the Northern Star Aboriginal Corporation and the North Star Construction Aboriginal Corporation be held: (i) at a general meeting of the relevant association; or (ii) at an election otherwise conducted in which all members of the association have a reasonable opportunity of participation and the right to be represented by a duly appointed agent". Otherwise the appeal should be dismissed with costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

on appeal from a judge of the federal court of australia

This is an appeal from a decision of a judge of the Court (Whitlam J) given on an application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). By that application, review was sought of the following decisions of the appellant: "1.1 No ... proxy votes will be accepted for the election (to be held at the Senior Citizens Hall, Sandon Street, Brewarrina, at 1.00 a.m. on Tuesday 11 November 1997) of the Governing Committee of the Northern Star Aboriginal Corporation (Northern Star) pursuant to s. 77D of the Aboriginal Councils and Associations Act, 1976 (the Act). 1.2 No ... proxy votes will be accepted for the election (to be held at the Senior Citizens Hall, Sandon Street, Brewarrina, New South Wales, at 11 a.m. or upon the completion of the Northern Star election on Tuesday 11 November 1997) of the Governing Committee of the North Star Construction Aboriginal Corporation (North Star) pursuant to s.77D of the Act." The orders made by the trial judge on the application under s 5 of the ADJR Act were as follows: "1. The elections to fill the offices of the members of the Governing Committees of the Northern Star Aboriginal Corporation and the North Star Construction Aboriginal Corporation be held at a general meeting of each corporation. 2. The Respondent pay the Applicant's costs." It is to be noted that the Rules of each of Northern Star Aboriginal Corporation ("Northern Star") and North Star Construction Aboriginal Corporation ("North Star") provide that - "At general meetings, any member shall be entitled to appoint another member as proxy by notice given to the Secretary at least 24 hours before the meeting in respect of which the proxy is appointed (but no member shall hold more than 3 proxies). The notice appointing the proxy shall be in the form set out in the Appendix to these rules." The grounds of appeal to this Court are as follows: "2. His Honour erred to find that an election conducted by the Appellant pursuant to Section 77D of the Aboriginal Councils and Associations Act 1976 (the Act) must be conducted at a general meeting of an Incorporated Aboriginal Association, called by the Appellant pursuant to section 58B(4). 3. His Honour erred to find that to conduct an election pursuant to Section 77D of the Act, the Appellant is bound to follow the rules of the Incorporated Aboriginal Association relating to the Governing Committee of that Association." STATUTORY BACKGROUND The long title of the Aboriginal Councils and Associations Act 1976 ("the Act") is: "An Act to provide for the Constitution of Aboriginal Councils and the Incorporation of Associations of Aboriginals and for matters connected therewith." Each of Northern Star and North Star is an Aboriginal Association incorporated under the Act. Pursuant to s 46 of the Act each of them is a body corporate with perpetual succession which may sue and be sued in its corporate name. Section 47 of the Act provides for an application for incorporation as an Aboriginal Association to be accompanied by rules which, upon the incorporation of the association under the Act, become the Rules of the Incorporated Aboriginal Association. Section 58B of the Act is concerned with general and special meetings of Incorporated Aboriginal Associations. It provides as follows: "(1) Subject to this section, the Governing Committee of an Incorporated Aboriginal Association is to call and conduct annual general meetings and special general meetings of the Association as provided in the Rules. (2) An aggrieved member may at any time request the Committee to call a special general meeting. The Committee must do so unless, on application by the Committee, the Registrar considers the request to be frivolous, unreasonable or contrary to the interests of the members of the Association. (3) The Registrar may call a special general meeting if the Committee has advertised it for a particular day but it has not been held for 14 days after that day. (4) The Registrar may call a special meeting at any time if, in the opinion of the Registrar, there is a need to do so. (5) The Registrar may call a special general meeting if requested to do so in writing by whichever is the greater of: (a) 5 or more members of the Association; or (b) no fewer than 10% of the total number of members of the Association. The Registrar is to conduct the meeting." The Act does not contain a definition of "Governing Committee". It does, however, in s 3 contain the following definition: "committee", in relation to an Aboriginal association, means the members having the conduct of the affairs of the association". The Rules of each of Northern Star and North Star provide for a "Governing Committee of the Association". Part V of the Act, which is constituted by ss 68-77E, is headed "Investigation and Administration of Aboriginal Corporations". Section 68 authorises the Registrar of an Aboriginal corporation ("the Registrar") to investigate the affairs of an Aboriginal corporation in certain circumstances. Section 3 of the Act defines "Aboriginal corporation" as an Aboriginal Council or an Incorporated Aboriginal Association. Section 71 provides for a procedure which may result in an Administrator being appointed to an Aboriginal corporation. If an Administrator is appointed to an Incorporated Aboriginal Association, the office of its public officer becomes vacant and all offices of the members of the Governing Committee of the association become vacant (s 73). The Administrator becomes responsible for the conduct of the affairs of the Incorporated Aboriginal Association and in addition has the functions and duties of its public officer (s 75). Section 77D of the Act provides as follows: "If the Registrar is satisfied that it is no longer necessary for the Administrator to conduct the affairs of the corporation, the Registrar must conduct an election to fill the offices of the councillors or the members of the Governing Committee, as the case may be." REASONING OF JUDGE AT FIRST INSTANCE Whitlam J noted that the term "election" in s 77D of the Act is not defined by the Act, but that it takes its meaning from the context of the Act. He further noted that the rules of Incorporated Aboriginal Associations are of central importance under Part IV of the Act which is concerned with such associations. He drew attention to s 43(3) of the Act which requires the rules of an Incorporated Aboriginal Association to make provision: "for or in relation to: ... (ea) the matters for which the Rules are to provide under section 58A in relation to meetings of the association; ..." His Honour observed, plainly correctly, that the reference in paragraph (ea) of s 43(3) to s 58A should be read as a reference to s 58B. Section 58B is set out above. His Honour then gave consideration to rules 9 and 15 of the Rules of Northern Star and North Star. The rules of the two associations are in all relevant respects identical. Rule 9 relevantly provides as follows: "COMMITTEE 9.(1) The Governing Committee of the Association shall be a committee of not less than five members. 9.(2) The members of the Committee shall be elected at the first general meeting of the Association and thereafter at each annual general meeting and shall be eligible for re-election. Except as otherwise provided in these rules, the members of the Committee shall hold office until the next annual general meeting. 9.(3) A person cannot be elected or hold office as a member of the Governing Committee if he has been convicted of an offence against a Commonwealth, State or Territory law and sentenced: (a) to imprisonment for 3 months or longer if the offence involved fraud or misappropriation of funds; (b) to imprisonment for one year or longer in the case of any other offence. The conviction does not prevent the person from standing for election or being elected if at least 5 years have passed since the date of conviction and the person is not serving a term of imprisonment. 9.(4) A person ceases to be a member of the Governing Committee if the person: (a) becomes bankrupt or insolvent under administration; (b) becomes incapable of holding office because of a civil penalty disqualification by a Court. 9.(5) A member of the Committee shall cease to hold office if he ceases to be a member of the Association, or if he resigns his office, or if by reason of infirmity, absence for three consecutive meetings without reasonable cause or any other reason the Association is of the opinion that he has ceased to be an effective member of the Committee. 9.(6) If at any time the number of members of the Committee is less than five, an additional member or members may be appointed by the Committee to fill the vacancies and shall be eligible for re-election. A Committee member appointed in this way shall hold office until the next annual general meeting and shall be eligible for re-election. 9.(7) There shall be a Chairperson, Secretary and Treasurer who shall be the office bearers and shall be elected by the members of the Committee at the first meeting of the Committee after the first general meeting of the Association and thereafter at the first meeting of the Committee after each annual general meeting of the Association and shall be eligible for re-election. 9.(8) Any vacancy in the office of an office bearer may be filled by the Committee. The member of the Committee elected in this way shall retain the office of office bearer until the next election of office bearers and shall be eligible for re-election. 9.(9) The Association may by resolution, remove any office bearer before the expiration of his period of office, and may by simple majority at the same or any other general meeting appoint another person in his place." Rule 15 relevantly provides as follows: "GENERAL MEETINGS: 15.(1)The first general meeting of the Association shall be held within three months after incorporation. 15.(2)The first annual general meeting of the Association shall be held within fifteen months after incorporation. Subsequent annual general meetings shall be held within three months after each 30 June. 15/(3)The order of business at the annual general meeting shall be - (a) to confirm the minutes of the last general meeting, whether the annual general meeting or a special general meeting; (b) to receive from the committee, reports concerning the activities and business of the Association during the preceding financial year ending 30 June, including the Committee's Report and Examiner's Report; (c) to elect the members of the Committee (the procedures for elections shall be in accordance with a method approved by the Association and may be based on Aboriginal custom); (d) to appoint an examiner as required by subsection 59(3) of the Act; and (e) to conduct such other business as the meeting shall determine. 15.(4)The Committee may call general meetings in addition to the first general meeting and the annual general meeting. 15.(5)Any general meeting other than the first general meeting and the annual general meeting shall be called a special general meeting. The order of business at a special general meeting shall be - (a) to confirm the minutes of the last general meeting, whether the annual general meeting or a special general meeting; (b) to deal with all matters for which the meeting was called; (c) to conduct such other business as the meeting shall determine. 15.(6)Subject to these rules, the place, date and hour of every general meeting shall be determined by the Committee and notice of the meeting, including the purpose of the meeting, shall be given to the members at least seven days prior to the date of the meeting, by any means the Committee considers appropriate. 15.(7)The Chairperson shall, on the written request of five (5) or more members or no fewer than ten percent (10%) of the total number of members of the Association, whichever number is greater, call a special general meeting to be held as soon as practicable but not later than one month after the Chairperson receives the request. 15.(8)An aggrieved member of the Association may at any time request the Governing Committee to call a special general meeting. The Committee must do so unless the Registrar considers the request to be frivolous unreasonable or contrary to the interests of the members of the Association. 15.(9)A request for a special meeting shall state the objects of the meeting and must be signed by the persons making the request. It may consist of several documents, each signed by one or more of the persons making the request." The conclusion which his Honour reached was that the Registrar was bound to exercise his power under s 58B(4) of the Act in order to conduct an election under s 77D of the Act. He expressed the view that the Act evinces the "plainest intention that members be given effective control over the running of associations incorporated under Pt IV" and that "[s]ection 58B is the core provision for the achievement of this goal". CONCLUSIONS ON APPEAL It is first to be observed, as his Honour did, that nothing in the Act expressly provides for the election referred to in s 77D to be conducted at a meeting of the relevant corporation, whether that corporation be an Aboriginal Council or an Incorporated Aboriginal Association. Had it been the intention of Parliament that all such elections should be conducted at a meeting of the corporation concerned, it would have been a simple thing for the section to so provide. Moreover, there is nothing in the nature of an election, as that term is generally understood, which tends to suggest that it is to take place at a meeting of electors. The Macquarie Dictionary, 2nd Edition, gives as the principal meaning of "election": "...the selection of a person or persons for office by vote". The methods of election, or selection for office by vote, with which Australians are most familiar do not involve voting at meetings. I am unable to agree with the judge at first instance that the Registrar was bound to exercise his power under s 58B(4) of the Act in order to conduct an election under s 77D of the Act. Of course, his Honour must have intended to limit his conclusion in this regard to the power of the Registrar to conduct an election to fill the offices of the members of the Governing Committee of an Incorporated Aboriginal Association; s 58B(4) has no operation in respect of Aboriginal Councils. Although the Rules of each of Northern Star and North Star provide for the election of members of the Governing Committee at annual general meetings (see Rule 9), such rules are not, in my view, to be understood as having an application in respect of an election pursuant to s 77D. Section 77D is not concerned with an election pursuant to the Rules of a corporation, but with an extraordinary statutory requirement for an election. It would be entirely fortuitous if an annual general meeting were to provide an appropriate occasion for an election pursuant to s 77D of the Act. In my view, the Registrar may conduct an election pursuant to s 77D of the Act by any means appropriate to give the relevant electors a fair opportunity to select by vote the persons to hold the offices to be filled by the election. In the case of an Incorporated Aboriginal Association, such means might, indeed in most cases probably will, involve the calling of a meeting of the relevant association. Section 58B(4) of the Act provides the machinery for the Registrar to call a meeting for this purpose. The Administrator would conduct such meeting pursuant to the powers and responsibilities bestowed on him or her by s 75 of the Act. If the calling of such a meeting is the means selected by the Registrar, then the practices and procedures to be adopted at such meeting will be governed by the rules of the association so far as they are capable of applying to such a meeting. However, should the Registrar, for proper reason, determine to conduct the election by, for example, a postal vote, or by the establishment of polling stations throughout the area in which electors might be expected to be found, then the Rules of the association concerned as to the practice and procedure to be adopted at meetings of the association will have no direct relevance to the conduct of the election. It is not to be overlooked, however, that s 77D of the Act requires the Registrar to conduct an election. A process which does not provide to all potential electors a fair opportunity to select by vote the persons to fill the relevant offices will not, in my view, amount to an election within the meaning of s 77D of the Act. In the case of Incorporated Aboriginal Associations, it is to be noted that s 58B(8) of the Act requires that their Rules make provisions for and in relation to voting by proxy. It may be assumed from this that Parliament is of the view that the democratic governance of Incorporated Aboriginal Associations requires that proxy voting at meetings of such associations be permitted. It would, in my view, only be in exceptional circumstances that the Registrar could appropriately determine to conduct an election under s 77D of the Act in respect of an Incorporated Aboriginal Association by the means of a meeting of the members of such association without allowing voting by proxy. No such exceptional circumstances have been identified in this case. In making the decisions the subject of the application for review in this case, the Registrar was required to act reasonably having regard to the policy and objects of the Act. In my view, in making such decisions, the Registrar failed to take into account relevant considerations, namely the need to ensure that an election process was adopted which would ensure, so far as practicable, that all potential electors had a fair opportunity to participate in the election process. I agree with the orders proposed by Wilcox J. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Associate: Dated: 23 December 1997 Counsel for the Appellant: Mr J Graves SC with Mr P. Renehan

Solicitor for the Appellant: Australian Government Solicitor

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