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. the facts 4 The facts are not contested. The Regional Council is one of nine regional councils into which Western Australia is divided under the Act. It has three wards, one of which is the Ward. The designation of the number of members of the Regional Council from the Ward is, and was at all material times, five persons: Sch 1 Pt 7 of the Aboriginal & Torres Strait Islander Commission (Regional Council Election) Rules 1990 (the Regional Council Election Rules). 5 In the 1999 round of elections for regional councils, Mr Chulung on 28 November 1999 was elected as a member of the Regional Council for the Ward. 6 On 20 March 2002 he was found guilty of, and convicted of, the offences that on 7 March 2002 at Kununurra he was in possession of a prohibited drug namely cannabis with intent to sell or supply it to another person, and that on the same day at Kununurra he supplied a prohibited drug namely cannabis to another person. Pursuant to a determination by the then Minister for Aboriginal and Torres Strait Islander Affairs made on 21 September 1994, the commission of an offence which results in such a conviction is taken to be misbehaviour for the purposes of the Act: Aboriginal and Torres Strait Islander Commissioner (Misbehaviour Determination No.2). Paragraph 3(1)(j) of the determination provided that misbehaviour for the purposes of the Act included the commission of an offence for which a person may, on conviction, be imprisoned and which results in a conviction. 7 Following the convictions, the Regional Council resolved on 23 April 2002 to recommend to the Board of the Aboriginal and Torres Strait Islander Commission (the Commission) that Mr Chulung be removed from his position as a member of the Regional Council because the convictions had brought the reputation of the Regional Council into disrepute. Section 122A of the Act empowers the Commission to suspend a regional councillor from office because of misbehaviour, subject to certain procedural requirements, including that the Commission give written notice to the regional councillor proposed to be suspended and provide the regional councillor with 30 days within which to show cause why he or she should not be suspended: s 122A(2). By letter dated 6 May 2002, the Commission served on Mr Chulung a notice that it had been informed of misbehaviour by him which it regarded as misbehaviour for the purposes of s 122A of the Act, and giving him the required opportunity to show cause why he should not be suspended from his office as a regional councillor of the Regional Council. Mr Chulung did not respond to the notice within the permitted time or at all. 8 On 28 June 2002, the Commission resolved to suspend Mr Chulung from his office as regional councillor of the Regional Council for misbehaviour. He was served with a notice of the resolution on 12 July 2002. 9 S 122A of the then Act required the Commission to cause a statement identifying the regional councillor and setting out the ground of his suspension be laid before each House of the Parliament within seven sitting days after the suspension. In the absence of any resolution by the Parliament declaring that the regional councillor ought to be restored to office within 15 sitting days after the day on which the statement has been laid before each House, the Commission is then empowered to remove the regional councillor from office: s 122A(5). As it happened, the Parliament was not sitting on 28 June 2002 and did not next sit until 19 August 2002. On 26 August 2002, pursuant to s 122A(3), the Commission caused the necessary statement to be laid before each House of Parliament in accordance with s 122A(3). No resolution by either House of the Parliament having been passed within 15 days thereafter, the Commission then was empowered to remove Mr Chulung from office as regional councillor of the Regional Council. On 17 October 2002 the Commission duly resolved to remove Mr Chulung from his office as regional councillor of the Regional Council pursuant to s 122A(5) of the Act. He was duly served with notice of its decision. 10 In the meantime, procedures for the 2002 round of elections of candidates to regional councils under the Act had been occurring. On 19 July 2002, the Minister fixed 19 October 2002 as the date for polling in the 2002 round of regional council elections: Gazette S275 19 July 2002. The nomination periods for candidates for regional councils commenced on 20 August 2002 and ended on 18 September 2002. On 5 September 2002 Mr Chulung nominated to stand again for office as a member of the Regional Council representing the Ward. On 19 September 2002 the regional returning officer declared that he and the 13 other nominated persons were validly nominated as candidates for the five offices of regional councillor for the Regional Council representing the Ward. Consequently, an election was required. 11 The polling took place in the election by means of mobile polling between 8 and 19 October 2002 and static polling which occurred on polling day on 19 October 2002. Following the count of votes, on 8 November 2002 the regional returning officer declared Mr Chulung and four other persons including Ian Trust as duly elected to serve as members for the Ward of the Regional Council. 12 At the close of polling, and at the time of the declaration of the poll, of course, Mr Chulung had been removed from his office as a member of the Regional Council for the Ward following the Commission resolution on 17 October 2002. consideration 13 The statutory framework governing the election, and elections for regional councils generally under the Act, is set out by French J in Whitby v Garlett (2000) 98 FCR 585 at 588-591; [2000] FCA 245 at [7]-[19] and by Kenny J in Hansen v Australian Electoral Commission [2000] FCA 606 at [5]-[9]. I will not repeat that analysis, but respectfully adopt it. 14 Relevantly for present purposes, s 102(1B) of the Act provides: 'A person who: (a) has ceased to be a member of a Regional Council under sub-section 122(2); or (b) has been removed from office as a Regional Councillor under sub-section 122A(5) after having been suspended from office because of misbehaviour; is not qualified to stand for election, or to be elected, as a member for a Regional Council ward until after the next round of elections for Regional Councils.' 15 Although the process of suspension and removal from office of Mr Chulung occurred during the course of the 2002 round of elections, at least in part, in my view the wording of that provision is clear. Mr Chulung was not qualified to be elected as a member of the Regional Council for the Ward in the 2002 round of elections for regional councils because he had been removed from office as a regional councillor under subs 122A(5) during the term of office as a regional councillor following his election to that office in 1999 and whilst he occupied that office. That is so even though, at the time he nominated for election for office in the 2002 round of elections, he was eligible to be a candidate and indeed remained eligible to be a candidate for almost all the period up to the polling day on 19 October 2002. I do not see any other way in which s 102(1B) of the Act can properly be construed. His 'election' to office as regional councillor in the 2002 round of elections occurred on 8 November 2002 when the poll was declared. He occupied the office of regional councillor for the Ward representing the Regional Council by reason of the 1999 election until that time. He was removed from office before the election in the 2002 round of elections. In my judgment the 'next round of elections' must be the 2002 round for regional council elections. Accordingly, by reason of s 102(1B), Mr Chulung was not eligible to be elected in that round of elections, and until the next round of elections. 16 In my judgment, it is clear that I should declare Mr Chulung not to have been qualified to be elected, and so not to have been duly elected, as a member for the Ward of the Regional Council at the election for such members declared on 8 November 2002: see In Re Wood (1988) 167 CLR 145 at 162-164 (Re Wood). 17 The issue then arises as to whether the Court should order a fresh election for the office of a member for the Ward of the Regional Council, or should order a further count of the votes cast in the election. In the event that the latter course is adopted, counsel on behalf of the Minister seeks an order that the recount take place by applying the Aboriginal and Torres Strait Islander Commission (Regional Council Election) (Casual Vacancies) Rules 1990 (the Casual Vacancies Rules), reading 'former member' in Sch 1 to those Rules as referring to Mr Chulung. 18 I do not think I should order a fresh election. The appropriate analogy, in this instance, is with an election for the Senate of the Australian Parliament. Regional councils are primarily constituted by the prescribed number of members elected in accordance with Div 4 of the Act: s 115(1). The elections are conducted under the Act and the Regional Council Election Rules. Because there are five members of the Regional Council elected to represent the Ward, Sch 2 to the Act applied to determine the successful candidates in the event of a poll becoming necessary. The successful candidates are those who secure a quota (the total number of first preference votes divided by the number of regional councillors representing the ward plus one) after the distribution of 'surplus votes' (as defined in cl 4 of Sch 2) of each elected candidate: Rule 96A of the Regional Council Election Rules. The ballot is conducted on an optional preferential basis: s 110 of the Act, and the method of counting votes involves the progressive distribution according to the formula specified in Sch 2 of the surplus votes of elected candidates who had secured a quota, and the progressive elimination of the candidates with the lowest votes and the distribution of those votes according to the preferences expressed. It is a scheme for ascertaining the result of the polling calculated to reflect the proportionate support of the electors for the respective candidates (cf Re Wood at 165). 19 Consequently, in my view, whilst the placing of a figure against the name of Mr Chulung on a ballot paper is of no effect, because he was not qualified to be chosen as a candidate at the polling day on 19 October 2002 or when the poll was declared on 8 November 2003, the indication of a voter's preference for another candidate or candidates is not a nullity. As the Court said in Re Wood at 165: 'That is not to say that the ballot papers are informal. An unqualified candidate who has been duly nominated, that is, one whose nomination complies with the formal requirements of the Act, is a candidate whose name is properly included on the ballot paper. But in the scrutiny, the indications of preference for a candidate cannot be treated as effective by this Court once the return of the unqualified candidate has been held to be invalid. That is no reason for disregarding the other indications of the voter's preference as invalid. The vote is valid except to the extent that the want of qualification makes the particular indication of preference a nullity.' 20 The Casual Vacancies Rules do not directly apply in the circumstances. Mr Chulung is not a 'former member', as defined in those Rules, in respect of whom there is a casual vacancy. He ceased to be a member of the Regional Council for the Ward upon his removal from office by the resolution passed on 17 October 2002. There was then a casual vacancy for the very brief remaining unexpired period of his office until the declaration of the poll on 8 November 2002 following the 2002 round of elections. In respect of that period, he was a 'former member' as defined in the Casual Vacancies Rules. That is a 'casual vacancy' to which those Rules applied, but the casual vacancy created by his removal was not filled. Because the polling day for the 2002 round of elections to regional councils had by then been fixed under s 104(2) of the Act, Rule 4(2) of the Casual Vacancies Rules directed that the casual vacancy not be filled. At the time of the polling on 19 October 2002, in respect of the office of regional councillor of the Regional Council for the Ward for the period of office for the 2002 round of elections, no 'casual vacancy' was left by a former member of the Regional Council. See the discussion by Gray J in Pettit v Atkinson (1994) 50 FCR 174 at 180-181 (Pettit). 21 The vacancy created in the number of members of the Regional Council for the Ward for the term provided by the 2002 round of elections for the Regional Council must be filled in the manner best calculated to determine the will of the electorate at the time the election was conducted. I have referred to the Court's powers in that regard in [2] above. The orders to be made should, so far as practicable given the lapse of time, reflect the method of counting votes and determining successful candidates at elections for two or more members for a ward for a regional council prescribed by s 111 and by Sch 2 to the Act. 22 Counsel for the Minister submitted that, to achieve those objectives, the Court should direct the Electoral Commission to identify the unsuccessful candidates at the election who wish to have their names included on a recount of the votes cast during the election, and (if then necessary) to recount the votes cast by reference only to those candidates to determine which of them should be declared elected. In effect, the order suggested is that the vacancy be filled as nearly as practicable in accordance with the Casual Vacancies Rules where the 'relevant election' is the 2002 round of elections for members of the Regional Council to represent the Ward, and as if the words 'former member' in those Rules was read to refer to Mr Chulung. 23 The Casual Vacancies Rules provide for the filling of casual vacancies by the Electoral Commission. They provide for the returning officer to give the unsuccessful candidates the opportunity to indicate whether they wish to be included in a recount of the votes, and only those unsuccessful candidates who positively declare their desire to do so and their continued eligibility for election then participate in the filling of the casual vacancy by the recount of votes: Rules 5-16. If no unsuccessful candidate is eligible to, and prepared to, participate in a recount or if there is no unsuccessful candidate, then a by-election must be held in accordance with Rules 17-18. The procedure at the recount is specified by Sch 1 to the Casual Vacancies Rules. 24 In fact, Mr Trust (one of the five successful candidates declared elected to the Regional Council for the Ward on 8 November 2002) was elected to the Aboriginal and Torres Strait Islander Commission on 28 November 2002. This created a vacancy in the Regional Council. Section 115A directed that the Minister then appoint a further member of the Regional Council ascertained by applying the same rules as would apply to filling a casual vacancy in the Ward. The person so appointed fills the office for the balance of the unexpired term of office. There were only four of the nine unsuccessful candidates who returned declarations of their interest in being so elected, and so participated in the recount conducted under the Casual Vacancies Rules. 25 Despite those circumstances, I do not consider it appropriate to order that there be a recount of the votes cast at the election of members of the Regional Council for the Ward under, and in accordance with, the Casual Vacancies Rules. There are two reasons for that view. The first is that it is the purpose of a recount to best determine the expression of the will of the electors at the time of the election. At that time, there were 14 declared candidates. The electors expressed preferences, or were entitled to express preferences, for the candidates. The will of the electorate would or might be distorted more than necessary if some only of the unsuccessful candidates were to be included in the recount. Moreover, the fact that an unsuccessful candidate has not responded positively to the invitation to declare positively a continuing eligibility to be elected, and a continuing consent to do so, does not mean that such a candidate was not at the time of the election eligible for election or does not wish to be reconsidered in the recount. 26 The second reason is simply that, in my view, Gray J in Pettit addressed and rejected the proposition that the recount should take place in accordance with the procedures under the Casual Vacancies Rules. His Honour said at 184: 'Any candidate not providing such a declaration by a specified time is to be excluded from the count. Those provisions are appropriate for the filling of casual vacancies, which might occur at any time during the term of office of a regional council. They are not appropriate when what is sought is to ascertain the will of the electorate as at the original polling day with respect to the unchallenged candidates. If written declarations were sought, and for any reason a candidate failed to make one, that candidate's exclusion would produce a greater than necessary distortion in the ascertainment of the expression of the voters' preferences.' 27 I respectfully agree with his Honour, and would in any event follow his views for reasons of comity. 28 I accordingly direct that a recount of the votes cast at the election for five members of the Regional Council to represent the Ward be held to elect a member of the Regional Council for the Ward in lieu of Mr Chulung, and that the successful candidate be declared elected. As the ballots on which the first preference was given to Mr Chulung remain valid, albeit that he was ineligible for election, those ballots if they include the expression of preferences should be included in the recount. 29 As Gray J did in Pettit, I also consider the appropriate counting procedure for the recount of the votes should be as set out in the Schedule to the Casual Vacancies Rules, but with appropriate modifications. Those Rules accommodate the circumstance that the votes cast for Mr Chulung can properly be allocated in accordance with the preferences of the electors. It may also be necessary to modify the Schedule to those Rules to accommodate the fact that Mr Trust has now been replaced with another elected candidate under and in accordance with s 115A. 30 Counsel for the Minister indicated that, if I was minded to make orders of the nature to which I have referred, the Minister would like the opportunity to speak to the precise terms of my proposed orders. I will proceed accordingly. At this point, therefore, I make no formal orders but will adjourn the proceedings for a short time to enable the parties if they wish to submit minutes of the orders I should make in accordance with these reasons, and to make submissions as to the precise orders I should make. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 30 July 2003 Counsel for the Applicant: Mr G McCarthy Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: The respondent appeared in person Date of Hearing: 17 July 2003 Date of Judgment: 31 July 2003