Australian Electoral Commission v Bamblett [2004] FCA 755

FEDERAL COURT OF AUSTRALIA

Australian Electoral Commission v Bamblett [2004] FCA 755

AUSTRALIAN ELECTORAL COMMISSION v LESLIE BAMBLETT

V 327 of 2004

RYAN J

11 JUNE 2004

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 327 of 2004

IN THE MATTER of a disputed election

under the Aboriginal and Torres Strait Islander

Commission Act 1989

BETWEEN: AUSTRALIAN ELECTORAL COMMISSION

Applicant

AND: LESLIE BAMBLETT

Respondent

JUDGE: RYAN J

DATE OF ORDER: 11 JUNE 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Leave be granted to amend the applicant's name to the "Australian Electoral Commission"; 2. The election of the respondent, Leslie Bamblett, be declared absolutely void; 3. The returning officer be directed to fill the casual vacancy created by the resignation of Mr Gavin Brown in accordance with the Aboriginal and Torres Strait Islander Commission (Regional Council Election) (Casual Vacancies) Rules 1990; 4. Liberty be reserved to the petitioner or to any person affected by this order to apply. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 327 of 2004

IN THE MATTER of a disputed election

under the Aboriginal and Torres Strait Islander

Commission Act 1989

BETWEEN: AUSTRALIAN ELECTORAL COMMISSION

Applicant

AND: LESLIE BAMBLETT

Respondent

JUDGE: RYAN J

DATE: 11 JUNE 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 19 October 2002, an election was held for the Tumbukka Regional Council ("the Council") of the Aboriginal and Torres Straight Islander Commission ("ATSIC"), as established under the Aboriginal and Torres Straight Islander Commission Act 1989 ("the ATSIC Act"). The election was for five councillors of the West Melbourne Ward of the Regional Council. Five persons, Gavin Brown, Troy Austin, Alf Bamblett, Lisa Thorpe and Sean Braybrook, were, on 1 November 2002, declared elected to those positions. There were 15 unsuccessful candidates. 2 On 30 January 2003, Mr Troy Austin was elected as a Commissioner of the Victoria Zone of ATSIC. That election created a vacancy in the office of Tumbukka Regional Councillor for the West Melbourne Ward of the Council which had been occupied by Mr Austin since the declaration on 1 November 2002. As a result, pursuant to s 115A of the ATSIC Act, Ms Colleen Joyce Marion, one of the unsuccessful candidates, was appointed by the Minister for Immigration, Multicultural and Indigenous Affairs to fill the casual vacancy in the position formerly occupied by Mr Austin. 3 Section 115A of the ATSIC Act provides: '(1) This section applies to a Regional Council if: (a) one of its members who is a Regional Councillor for a ward is appointed under section 27 as a member of the Commission; and (b) there has not previously been an appointment under this section for the Regional Council during the current term of the Regional Council. (2) The Minister must appoint, as a member of the Regional Council, the person ascertained by applying the same rules as would apply to filling a casual vacancy in the ward. (3) A person appointed as a member of a Regional Council under this section holds office until the end of the next round of Regional Council elections following his or her appointment.' 4 On 17 November 2003, Mr Gavin Brown, who, it will be remembered, had been one of the successful candidates at the election declared on 1 November 2002, resigned his office. That resignation created a casual vacancy which required to be filled pursuant to the ATSIC (Regional Council Election Casual Vacancies) Rules 1990 ("the casual vacancies rules") and the ATSIC (Regional Council Election) Rules 1990. The casual vacancies rules provided by rules 5 and 6; '5(1) The returning officer must: