Minister for Immigration & Multicultural & Indigenous Affairs, in the matter of a reference under The Aboriginal & Torres Strait Islander Commission Act 1989 v Chulung [2003] FCA 782

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs, in the matter of a reference under The Aboriginal & Torres Strait Islander Commission Act 1989 v Chulung [2003] FCA 782 Election of regional councillors for a multi-member ward – one elected person not eligible for election – whether recount of votes or fresh election should be ordered – 'Casual vacancies" rules which provide for only those unsuccessful candidates who declared their continued desire to be elected and their continued eligibility to be elected to be included in recount – whether recount of votes should be conducted under those rules.

Aboriginal & Torres Strait Islander Commission Act 1989 Aboriginal & Torres Strait Islander Commission (Regional Council Election) Rules 1990 Aboriginal and Torres Strait Islander Commission (Regional Council Election) (Casual Vacancies) Rules 1990 Whitby v Garlett (2000) 98 FCR 585; [2000] FCA 245 considered Hansen v Australian Electoral Commission [2000] FCA 606 considered In Re Wood (1980) 167 CLR 145 followed Pettit v Atkinson (1994) 50 FCR 174 followed MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, IN THE MATTER OF A REFERENCE UNDER THE ABORIGINAL & TORRES STRAIT ISLANDER COMMISSION ACT 1989 v DONALD ARTHUR CHULUNG D 2 of 2003 MANSFIELD J 31 JULY 2003 DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY D 2 OF 2003

BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, IN THE MATTER OF A REFERENCE UNDER THE ABORIGINAL & TORRES STRAIT ISLANDER COMMISSION ACT 1989

APPLICANT

AND: DONALD CHULUNG

RESPONDENT

JUDGE: MANSFIELD J

DATE: 31 JULY 2003

PLACE: DARWIN

REASONS FOR JUDGMENT 1 This is a reference of a question by the Minister pursuant to Pt 3 of Sch 4 of the Aboriginal & Torres Strait Islander Commission Act 1989 (the Act) relating to the qualification of Donald Chulung as a member of the Wunan Regional Council (also known as the Kununurra Regional Council) (the Regional Council). 2 The question is whether Mr Chulung was qualified to be elected as a member of the Yawooroong ward (also known as the Wunan ward) (the Ward) of the Regional Council at the election for members of the Regional Council held on 19 October 2002. If I determine that Mr Chulung was not qualified to be elected as a member of the Regional Council, it will then be necessary to determine what orders should be made to secure a full composition of the Regional Council. Clause 21 of Sch 4 to the Act empowers the Court to declare that any person was not qualified to be a member of a Regional Council and to declare that there is a vacancy in a Regional Council. It also empowers the Court to declare that any person who was returned was not duly elected and to make any order or to give any direction that the Court thinks is necessary or convenient for the purpose of giving effect to any declaration or other decision of the Court in the proceedings. 3 In accordance with the procedure contemplated by cl 19 of Pt 3 of Sch 4 of the Act, notice of the reference and of the materials in support of the reference have been served on all persons who were candidates in the election. None has chosen to participate in the hearing in any way, apart from Mr Chulung.