BURNUM BURNUM v ELECTORAL COMMISSIONER OF NEW SOUTH WALES [1993] NSWCA 44

BURNUM BURNUM v ELECTORAL COMMISSIONER OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, CLARKE JA and HANDLEY JA 2, 15 September 1993

[1993] NSWCA 44 ELECTIONS — Statutes — delegated legislation.

Under the Aboriginal Land Rights Act 1983 a member of a Local Aboriginal Land Council may stand for election to the NSW Aboriginal Land Council. The Act defines a member as a person whose name has been listed on the roll of the Local Council in certain circumstances. The Regulations made under the Act purport to confer upon the Chairperson of the NSW Aboriginal Land Council a power to add a person's name to such a roll in certain circumstances. The appellant's name was added to a roll in purported pursuance of that power and he was elected to the NSW Aboriginal Land Council.

HELD - The appellant was not eligible for election for two reasons:

1 The regulations purporting to confer on the Chairperson the power to make a person a member of a Local Council other than in one of the ways provided by the Act were ultra vires and invalid.

2 On the true construction of the regulations if valid, the appellant's case did not fall within the prescribed circumstances. When regulations prescribe the publication of a notice stating that a certain step, to be effective, must be taken within a certain time, then the regulations must have been intended to operate on the basis that such information would be true. The step, therefore, must be taken within the time stipulated in the notice.

Shanahan v Scott (1957) 96 CLR 245 applied.

Devine v Devine and Queensland Insurance Co Ltd (1928) 28 SR (NSW) 503, TA Brierley Investments Ltd v Landmark Corporation Ltd (1966) 120 CLR 224 applied.

Clarke JA. I agree with Gleeson CJ. Handley JA. I agree with Gleeson CJ.

Gleeson CJ. This is an appeal from a decision of Pearlman J, the Chief Judge of the Land and Environment Court, in proceedings that were brought to challenge the validity of the election of the appellant, Burnum Burnum, to the position of councillor, representing the South Coast Region, of the New South Wales Aboriginal Land Council. The challenge was based upon the contention that the appellant was not eligible to be a candidate for election. Pearlman J upheld the challenge and made certain consequential orders concerning the election. The appropriateness of those consequential orders is not in question in this appeal. The issue is whether her Honour was correct to conclude that, in the events that occurred, the appellant was not eligible to be a candidate at the election.