Reported Decision : 166 LGERA 157 Land and Environment Court of New South Wales CITATION : Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors [2009] NSWLEC 58 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT/FIRST CROSS-DEFENDANT Patricia Helen Laurie FIRST RESPONDENT/CROSS-CLAIMANT New South Wales Aboriginal Land Council PARTIES : SECOND RESPONDENT Registrar, Aboriginal Land Rights Act 1983 SECOND CROSS-DEFENDANT Brian Decelis THIRD CROSS-DEFENDANT Electoral Commissioner for New South Wales FILE NUMBER(S) : 40616 of 2008 CORAM: Pain J INJUNCTIONS AND DECLARATIONS :- Applicant elected as councillor of NSWALC - declaration sought to allow Applicant to continue in role - cross-claim seeking declaration that nomination and election of councillor void Jurisdiction :- jurisdiction of Court to hear cross-claim as to whether Applicant validly elected - whether validity of election can only be raised when court sitting as a court of disputed returns - distinction between election process and qualification of candidate to hold office/vacancy of office - whether declarations sought by cross-claim ancillary to Applicant's claim for relief KEY ISSUES: Construction and Interpretation:- was Applicant's election under Div 3 void because disqualified from holding office under Div 4 of Aboriginal Land Rights Act 1983- was Applicant's nomination for election validly accepted by the returning officer - should incorrect statutory declaration of the Applicant have been rejected - was Applicant immediately disqualified after her election Judicial Review :- whether decision of Registrar not to ignore disqualifying conviction invalid - whether failure to give real and genuine consideration to relevant matters - whether irrelevant matters taken into account - whether decision manifestly unreasonable - whether Applicant denied procedural fairness by Registrar failing to disclose complaint and adverse material obtained - whether apprehension of bias because of way Registrar considered matters Aboriginal Land Rights Act 1983 s 3, 63, 66, 106, 120, 121, 123, 124, 125, 128, 132, 133, 135, 136, 137, 164, 165, 226, 235 Aboriginal Land Rights Amendment Act 2001 Aboriginal Land Rights Amendment Act 2006 Aboriginal Land Rights Regulation 1996 (repealed) Aboriginal Land Rights Regulation 2002 cl 47, 48, 80, 83 Broadcasting and Television Act 1942 (Cth) Commonwealth Electoral Act 1902 (Cth) s 192 (repealed) Commonwealth Electoral Act 1918 (Cth) s 162, 163, 360, 376 Commonwealth of Australia Constitution Act (1900) s 47 LEGISLATION CITED: Constitution Amendment Act 1958 (Vic) s 73, 300 Crimes (Sentencing Procedure) Act 1999 s 17 Funeral Funds Act 1979 s 11 Interpretation Act 1987 s 33, 34, 35 Land and Environment Court Act 1979 s 16, 20 Local Government Act 1993 s 274, 275, 276, 329 Local Government (Consequential Provisions) Act 1993 Migration Act 1958 (Cth) Parliamentary Electorates and Elections Act 1912 s 161, 175B Road Transport (Driver Licensing) Act 1998 s 25A(1)(a) Water Management Act 2000 Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494 Allen Allen & Hemsley v Australian Securities Commission (1992) 27 ALD 296 Arnold v Minister Administering the Water Management Act 2000 (2008) 163 LGERA 429 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Blundell v Vardon (1907) 4 CLR 1463 at 1513 Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 Burnum Burnum v Gandangara Local Aboriginal Land Council (1997) 93 LGERA 148 Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 48 FCR 280 Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576 Commonwealth v Baume (1905) 2 CLR 405 Connolly v Electoral Commissioner of New South Wales (1992) 76 LGRA 104 Cutelli v Wyong Shire Council [2007] NSWLEC 137 Darkingjung Pty Ltd v Darkingjung Aboriginal Land Council [2006] NSWSC 42 Dodd v Gandangara Local Aboriginal Land Council (1999) 106 LGERA 189 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 617 Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274 IW v City of Perth (1997) 191 CLR 1 In Re Wood (1988) 167 CLR 145 Kioa v West (1985) 159 CLR 550 Kruger v Commonwealth (1997) 190 CLR 1 CASES CITED: Lane v Atkin (1922) 30 CLR 437 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 Martin v Nicholson (1850) 1 Legge 618 McDonald v Keats [1981] 2 NSWLR 268 McGovern v Ku-ring-Gai Council (2008) 161 LGERA 170 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 Newcastle City Council v Caverstock Group Pty Ltd and Anor (2008) 163 LGERA 83 Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404 Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 Re Walsh [1971] VR 33 Save Our Street Inc v Settree and Another (2006) 149 LGERA 30 Scharer v State of New South Wales (2001) 53 NSWLR 299 Shergold v Tanner (2002) 209 CLR 126 Teoh v Hunters Hill Council [2008] NSWLEC 263 Yanner v Minister for Aboriginal and Torres Strait Islander Affairs (2001) 108 FCR 543 TEXTS CITED: Aronson M et al, Judicial Review of Administrative Action, 4th Edition, Lawbook Co, Sydney 2009 Pearce D C and Geddes R S, Statutory Interpretation in Australia, 6th edition, LexisNexis Australia 2006 25 August 2008 DATES OF HEARING: 26 August 2008 8 December 2008 9 December 2008 DATE OF JUDGMENT: 4 May 2009 APPLICANT/FIRST CROSS-DEFENDANT Mr S Docker SOLICITORS Conroy Stewart Spagnolo FIRST RESPONDENT/FIRST CROSS-CLAIMANT Mr J Kirk SOLICITORS Chalk and Fitzgerald Lawyers LEGAL REPRESENTATIVES: SECOND RESPONDENT Mr A McAvoy INSTRUCTED BY Registrar, Aboriginal Land Rights Act 1983 SECOND AND THIRD CROSS-DEFENDANTS Ms C Spruce SOLCITORS Crown Solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 4 May 2009 40616 of 2008 Laurie v NSW Aboriginal Land Council and Ors; New South Wales Aboriginal Land Council v Laurie and Ors JUDGMENT 1 Her Honour: The Aboriginal Land Rights Act 1983 (the ALR Act) introduced provisions for land rights for Aboriginal people in NSW. The ALR Act established aboriginal land councils in which land was vested for the benefit of Aboriginal people. The Act established three tiers of aboriginal land councils at the local, regional and state level. At the state level the NSW Aboriginal Land Council (the NSWALC) consisted of 13 councillors elected by members of each of the 13 regional aboriginal land councils. Each regional aboriginal land council was made up of representatives elected by members of the local aboriginal land councils in each region. 2 In February 1997, a review of the Act was announced to address recommendations made after an ICAC investigation into the operation of Aboriginal land councils. The review of the Act culminated in the Aboriginal Land Rights Amendment Act 2001. New provisions specified the circumstances in which councillors and office-bearers were to be disqualified from holding office on land councils. 3 Another review of the Act occurred in 2004. This review led to the Aboriginal Land Rights Amendment Act 2006 which extensively amended parts of the ALR Act. The 13 regional aboriginal land councils were replaced by nine regional electoral forums, each comprised of the chairpersons of each of the local aboriginal land councils in the region. The nine regional electoral forums each elect a councillor for the region to represent them on the NSWALC. Additional provisions expanding the circumstances in which councillors would be disqualified from holding office were added to the ALR Act. These provisions are the subject of these proceedings. 4 The Applicant was elected as a councillor of the NSWALC for the north coast region of New South Wales in May 2007, the first election of members of the NSWALC after the 2006 amendments to the ALR Act. 5 The Applicant was convicted of a particular driving offence in 2003 (the 2003 driving conviction). A complaint by the First Respondent, the NSWALC, to the Registrar about another driving conviction in 2008 was made after her election. The Registrar investigated whether the Applicant was disqualified from holding office as a councillor of the NSWALC under s 132(1)(c) of the ALR Act. Section 132 was introduced into the ALR Act as part of the 2006 amendments (in force from February 2007). Following that investigation both the Registrar and the NSWALC formed the view that the Applicant was disqualified from holding office because of the 2003 driving conviction. The NSWALC wrote to the Applicant in June 2008 stating that she was not able to act as a councillor for her region and should not receive her entitlements as a councillor. The Applicant commenced these proceedings to seek an order inter alia restraining the NSWALC from interfering with the performance of her functions as a councillor under the ALR Act. 6 The Registrar is appointed under s 164 of the ALR Act. The functions of the Registrar are set out in s 165 and include in subsection (i) the functions conferred by the Act. Under s 132(2) of the ALR Act the Registrar may determine that the conviction for an offence referred to in s132(1), which disqualifies a councillor from holding office, should be ignored. The Applicant applied to the Registrar with submissions dated 10 March 2008 to have him determine whether her 2003 driving conviction should be ignored under s 132(2). The Registrar made a determination in May 2008 that the Applicant's driving conviction not be ignored under s 132(2). The Applicant seeks an order that the Registrar's determination in May 2008 under s 132(2) of the ALR Act not to ignore the Applicant's driving conviction be set aside. The Registrar is the Second Respondent. 7 A cross-claim has been filed by the NSWALC seeking orders to set aside the decision of the returning officer for the election of councillors on 22 May 2007 to declare the Applicant elected as a councillor, inter alia. The returning officer is an employee of the Electoral Commissioner (the Third Respondent). He was nominated by the Electoral Commissioner as the returning officer for the election pursuant to s 121(3) of the ALR Act. Additional orders are sought by the NSWALC that the election of the Applicant was invalid and that a new election for the position of councillor for the north coast region ought be held. These orders are opposed by the returning officer and the Electoral Commissioner (together referred to as the returning officer), the Second and Third Cross-Defendant respectively, and the Applicant (the First Cross-Defendant). Evidence on Applicant's claim and the cross-claim 8 The Applicant swore an affidavit dated 24 June 2008. It sets out the relevant events concerning her driving offence on 14 September 2002 of driving whilst disqualified under s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998, her plea of guilty to that offence, her conviction on 11 March 2003 and her disqualification from driving for two years from 11 March 2003 to 10 March 2005. The affidavit details her nomination as a candidate for the 2007 NSWALC elections as councillor for the north coast region of NSW and her performance of duties as a councillor since being elected. 9 A bundle of documents was filed by the Applicant and contains the explanatory note to the Aboriginal Land Rights Amendment Bill 1995, a ministerial statement in respect of that bill, a second reading speech and committee report in respect of that bill, the proclamation in respect of the subsequent Act on 8 November 1995, the proclamation in respect of the Aboriginal Land Rights Amendment Act 2001 on 23 October 2002, the proclamation in respect to the Aboriginal Land Rights Amendment Act 2001 on 31 January 2007 and the Applicant's payslip from NSWALC of 11 June 2008. An agreed bundle of documents was also filed and included, inter alia, the Applicant's nomination, statutory declaration and the notice of declaration of election. 10 The following chronology is reproduced from the parties' submissions and pleadings. There is no dispute about the events in the chronology, only what their legal effect is in light of the ALR Act provisions concerning the election and disqualification of councillors. 14 September 2002 The Applicant drove whilst disqualified and was subsequently issued a summons out of Maclean Local Court 11 March 2003 The Applicant is convicted in Maclean Local Court of driving whilst disqualified under s 25A(1)(a) Road Transport (Driver Licensing) Act 1998 (the driving offence) and is disqualified from driving for two years until 10 March 2005 Late 2006/ The Minister for Aboriginal Affairs determined, in consultation with NSWALC, the date upon which elections for the offices of councillor for the NSWALC Regions would be held pursuant to s 122 of the Act. The Second Cross-Defendant, an employee of the Electoral Commission, was appointed the returning officer for the election: s 121(3) of the ALR Act. early 2007 February 2007 Public notice given by the Second cross-defendant that the elections for the offices of councillors of NSWALC would be held on 19 May 2007 7 February 2007 The ALR Amendment Act 2006 commences, s 132 takes effect. Because of the driving offence the NSWALC alleges that the Applicant was disqualified from holding the office of councillor of NSWALC by force of s 132(1)(c) of the ALR Act, until 11 March 2008 26 March 2007 Second cross-defendant calls for nominations for candidates for the elections for the offices of councillor of NSWALC, with nominations closing at noon on 23 April 2007 20 April 2007 The Applicant nominates as a candidate in the election to be held on 19 May 2007 for the office of councillor of the North Coast Region of NSWALC including swearing a statutory declaration that incorrectly states that she is not disqualified from holding office under s 132 of the Act 23 April 2007 The Applicant is nominated as a candidate in the election after acceptance of the nomination by the returning officer 19 May 2007 The election is held 22 May 2007 The returning officer returning officer declares the Applicant elected as councillor for the North Coast Region of NSWALC 30 May 2007 The Applicant takes office as a councillor of NSWALC upon the end of the period of administration of the Council: cl 99A, ALR Regulation 17 and 25 January 2008 NSWALC complains to Registrar that the Applicant is in breach of s 132(1)(c). The Registrar commences an investigation. Relevant legislation 11 It is necessary to set out at length the divisions of the ALR Act and the ALR Regulations concerning the election and disqualification of councillors which apply in this case. Aboriginal Land Rights Act 1983 Part 7 - NSW Aboriginal Land Council 12 Division 1 concerns the constitution of the NSWALC. Division 2 s 106 identifies the extensive functions of the NSWALC. Division 3 Councillors of NSW Aboriginal Land Council 13 Section 120 is headed "Membership of New South Wales Aboriginal Land Council" and provides: (1) The New South Wales Aboriginal Land Council is to consist of an Aboriginal councillor elected for each Region. (2) The councillors are to be full-time. (3) Subject to this Act, a councillor holds office for a period beginning on the councillor's election and expiring: (a) on the councillor's election for another term, or (b) on the election of the councillor's successor. (4) A councillor is eligible (if otherwise qualified) for re-election. (5) A councillor is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975. (6) A councillor is entitled to be paid such travelling and other allowances as the Minister may from time to time determine in respect of the councillor. … 14 Section 121 is headed "Election of councillors" and provides: (1) Each councillor is to be elected in the manner specified in this Division to represent a Region. (2) The regulations may make provision for or with respect to the election of councillors. (3) The Electoral Commissioner for New South Wales, or a person employed in the office of and nominated by the Electoral Commissioner, is to be the returning officer for elections of councillors. (4) A person is not qualified to stand for election, or to be elected, as a councillor representing a Region unless the person is a voting member of a Local Aboriginal Land Council the area of which is within the Region. (5) A person is entitled to vote at an election for a councillor to represent a Region if the person is a voting member of a Local Aboriginal Land Council the area of which is within the Region. (6) A person is only entitled to cast his or her vote in respect of the Local Aboriginal Land Council area in which the person has voting rights. 15 Section 123 is headed "Declaration of election" and provides: If the returning officer for an election of councillors is advised by a regional electoral officer that the result of the counting of votes is that a candidate has been elected, the returning officer must immediately publicly declare the candidate elected as a councillor 16 Section 124(2) provides: (2) A candidate who is publicly declared elected as a councillor by the returning officer holds that office until the determination of any proceedings disputing the validity of the election of the candidate. 17 Section 125 is headed "Method of disputing elections and returns" and provides: (1) The validity of an election for a councillor to represent a Region, or of any return or statement showing the voting in any such election, may be disputed by an application to the Court, and not otherwise. (2) Any person may make an application to the Court under this section within 28 days after the returning officer has publicly declared the result of the election that is the subject of the application. (3) In determining an application under this section, the Court has the same powers as are conferred by section 161 of the Parliamentary Electorates and Elections Act 1912 on the Court of Disputed Returns. (4) The returning officer is entitled to be represented at the hearing of an application under this section. Division 4 Removal from office 18 Section 132 is headed "Grounds for disqualification from office" and provides: (1) A person is disqualified from holding office as a councillor of the New South Wales Aboriginal Land Council if the person: (a) has a conviction in New South Wales or elsewhere for an offence relating to the management of a corporation that was recorded within the last 5 years, or (b) has a conviction for an offence under this Act that was recorded within the last 5 years, or (c) has a conviction in New South Wales for any other offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable that was recorded within the last 5 years, or (d) is a mentally incapacitated person, or (e) is or becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (f) is or was a director or person concerned in the management of a body corporate that is the subject of a winding up order or for which a controller or administrator has been appointed under the Corporations Act 2001 of the Commonwealth during the previous 3 years, or (g) is disqualified from holding office in or being concerned in the management of a corporation under any law of this or any other State or Territory or the Commonwealth, or (h) is an employee of, or a consultant to, the Council, or (i) in the case of a councillor, engages in other paid employment, or (j) was, on 2 or more occasions before an administrator was appointed to the Council, an officer of the Council, or (k) fails, without a reasonable excuse, for a period of 3 months or more to comply with a written requirement by the Council to undergo training under section 125, or (l) is disqualified from being a Board member, other than on the ground that the person is a councillor. (2) The Registrar may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence. (3) The Registrar may determine that a person is not disqualified on the ground set out in subsection (1) (j) if the Registrar is satisfied that it is appropriate in the circumstances that the person not be disqualified on that ground. 19 The driving offence for which the Applicant was convicted in 2003 was punishable by imprisonment for more than 12 months and is therefore an offence referred to by s 132(1)(c). If s 132(1)(c) applies, the Applicant would have been disqualified from being a councillor for five years from the date of conviction, that is until 11 March 2008. 20 Section 133 is headed "Vacancy in office" and provides: A person who is a councillor of the New South Wales Aboriginal Land Council vacates office if the person: (a) dies, or (b) is absent from 2 consecutive meetings of the Council of which reasonable notice has been given to the person personally or by post, except on leave granted by the Council or unless the person is excused by the Council for having been absent from those meetings, or (c) completes a term of office and is not re-elected, or (d) resigns the office by instrument in writing addressed to the Council, or (e) becomes disqualified from holding office as a councillor under this Act, or (f) represents a Region the area of which is changed. 21 Section 135 is headed "ADT may declare particular offices of New South Wales Aboriginal Land Council vacant" and provides: (1) Any person may apply to the Administrative Decisions Tribunal for an order declaring that a particular office of a councillor has become vacant under this Act. (2) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this section. 22 Section 136 is headed "Appeals to Supreme Court against order" and provides: (1) A person whose office has been declared vacant by order of the Administrative Decisions Tribunal may appeal against the order, on a question of law, to the Supreme Court. (2) Such an appeal may not be made more than 28 days after the date on which the order is made. 23 Section 137 is headed "Effect of order declaring vacancy" and provides: An order declaring a vacancy in an office made by the Administrative Decisions Tribunal under this Division takes effect: (a) if no appeal to the Supreme Court is made against the order, at the end of the period during which such an appeal may be made, or (b) if such an appeal is made within that period and the order is confirmed on appeal, when the order is confirmed, or (c) if, within that period, the person against whom the order is made serves on the Chief Executive Officer of the New South Wales Aboriginal Land Council written notice of intention not to appeal against the order, when the notice is lodged. Aboriginal Land Rights Regulation 2002 Division 1- Calling of election of councillors of NSWALC 24 Clause 47 "Manner of nominating candidates" provides: (1) A nomination of a candidate for election as a councillor must: (a) be made by no fewer than 6 persons (other than the candidate), each of whom is entitled to vote in the election, and (b) be in a form approved by the returning officer, and (c) be signed by the candidate stating that he or she consents to the nomination and is qualified to stand for election, and (c1) be accompanied by a statutory declaration by the candidate, in a form approved by the returning officer, that the candidate is not disqualified from holding office under section 132 of the Act, and (d) be accompanied by a deposit of $50 in the form of cash, money order or bank cheque, and (e) be lodged with the returning officer before the close of nominations in the election. (2) A person can only nominate one candidate in an election of a councillor for a Region. (3) A nomination paper is not open for public inspection. (4) A failure to comply with the requirements of subclause (1) in relation to the nomination of a candidate must be rectified by the candidate before the date fixed for the close of nominations. 25 The statutory declaration sworn by the Applicant pursuant to cl 47(1)(c1) that she was not disqualified from holding office under s 132 was incorrect. Because of the 2003 driving conviction the Applicant was disqualified from holding office under s 132 of the Act. 26 Clause 48 "Rejection of nomination" provides: (1) The returning officer is to reject the nomination of a person as a candidate at an election if: (a) the person is not qualified to stand for election, or (b) the person is not nominated in accordance with clause 47 and any failure to comply with the requirements of clause 47 (1) is not rectified as provided by that clause. (2) The deposit accompanying the nomination is to be retained pending the election. Division 6 - Miscellaneous electoral provision s 27 Clause 80 - Decisions of returning officer: Subject to the Act, a decision by the returning officer on any matter relating to the conduct of an election is final if the decision is required or permitted to be made by the returning officer by this Regulation. 28 Clause 83 – Offences – provides: A person must not: … (c) make a false or wilfully misleading statement: (i) to the returning officer, a regional electoral officer or a deputy electoral officer in connection with an election, or (ii) in any document that the person furnishes for the purposes of an election, or … Maximum penalty: 5 penalty units. (a penalty unit is $110 pursuant to the Crimes (Sentencing Procedure) Act 1999 s 17) Previous amending Acts 29 The provisions of the ALR Act considered in these proceedings were largely introduced by amendments to that Act in 2006 which took effect on 7 February 2007. The amendments, now found in Div 3 and Div 4, introduced several new provisions concerning the election and disqualification of councillors. In the Second Reading Speech which introduced the Bill in the Legislative Assembly, the Minister for Aboriginal Affairs stated: …the bill is modernising the legislation to recognise that the Aboriginal Land Rights Act is moving into a new area of economic and social development for Aboriginal Land Councils. Reforms to the Local Aboriginal Land Council structure are designed to create better decision-making and fairer participation in land councils…the bill disqualifies persons from holding office as a board member or councillor where they have convictions for certain offences recorded within the past five years. Such convictions include where a person has been involved in the management of a corporation, or a matter relating to the Aboriginal Land Rights Act, or any other offence that is punishable by imprisonment for 12 months or more. (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 October 2006 at 3280 (Milton Orkopoulos, Minister for Aboriginal Affairs)) 30 Prior to the 2006 amendment the grounds for disqualification as a councillor were much more limited and contained in Div 5, s 111A of the ALR Act which provided: A person who is convicted of an offence under Part 3 (except section 61), 4, 4A or 5 of the Crimes Act 1900 is disqualified from holding office as a councillor for 5 years from the date of conviction. Applicant's Claim against NSWALC 31 Detailed Amended Points of Claim (APOC) have been filed which set out the grounds of the Applicant's claim. There is no dispute that the Court has jurisdiction under s 20(2) of the Land and Environment Court Act 1979 (the Court Act) to determine the Applicant's claims as she is enforcing a right under an environmental and planning law referred to in s 20(3). The ALR Act (except for Div 5 Pt 7) is a planning or environmental law; s 20(3)(a) of the Court Act. 32 The relief claimed is a declaration that the Applicant has held the office of councillor of the NSWALC for the north coast region under the ALR Act since the declaration of the election for the north coast region on 22 May 2007 and continues to hold that office. An order restraining the NSWALC from interfering with the performance of her duties as councillor is also sought. A further order that the NSWALC pay the Applicant's remuneration, travelling and other allowances to which she is entitled as a councillor is also sought. 33 There is correspondence from the NSWALC in evidence which states that it does not consider the Applicant should remain as a councillor or receive her allowance and remuneration. The parties have reached agreement that the Applicant will continue in her position as councillor and that payment will continue pending the outcome of this case. 34 In the APOC the Applicant accepts that on 7 February 2007 she was disqualified from holding office as a Councillor on the NSWALC until 11 March 2008 pursuant to s 132(1)(c) of the ALR Act because the amendments to the ALR Act which introduced s 132(1)(c) of the ALR Act came into force on that day. Her disqualification is subject to a determination by the Registrar under s 132(2) that the 2003 driving conviction be ignored for the purpose of s 132(1). 10. By reason of the declaration of her election as councillor for the North Coast Region on the NSWALC … and ss120 and 124 of the ALR Act, Ms Laurie holds that office for the period beginning on her election and expiring: (a) on her election for another term; (b) on the election of her successor; (c) when this Court hearing an application under section 125 disputing the validity of her election determines otherwise; or (d) when her office becomes vacant. 11. Ms Laurie has not been elected for another term. 12. No successor to Ms Laurie has been elected. 13. Pursuant to s125(1) of the ALR Act, the validity of Ms Laurie's election as councillor to represent the North Coast Region on the NSWALC may be disputed by an application to this Court and not otherwise. 14. Pursuant to s125(2) of the ALR Act, an application to dispute Ms Laurie's election as councillor to represent the North Coast Region on the NSWALC may be made within 28 days of the declaration of her election. 15. No application was made to this Court pursuant to s125(1) of the ALR Act to dispute Ms Laurie's election within 28 days of Ms Laurie being declared elected as councillor to represent the North Coast Region on the NSWALC. 16. Ms Laurie's office has not become vacant. 17. By reason of the matters pleaded … above, Ms Laurie holds and has held the office of councillor to represent the North Coast Region on the NSWALC since the declaration of her election on or about 19 May 2007. 18. Further or in the alternative, even if Ms Laurie's holding of the office of councillor to represent the North Coast Region on the NSWALC may be disturbed otherwise than by the 4 events pleaded in paragraph 10 above (which is denied), her holding of that office may not be disturbed by reason of the Driving Offence since 12 March 2008 because from that date Ms Laurie was no longer disqualified from holding office pursuant to s132(1) of the ALR Act. Applicant's submissions 35 The Applicant was qualified to stand for election and be elected as councillor to represent the north coast region of NSW pursuant to s 121(4). She nominated for that election and was declared elected pursuant to s 123 by the returning officer. She therefore became the person referred to in s 120(1) and s 121(1) elected for that region. By reason of s 120(3) and s 124(2) the Applicant held the office of councillor when the declaration was made. Nothing has occurred since then to dislodge the Applicant from office so it follows that the Applicant continues to hold office as councillor of the NSWALC. No application was made to this Court in its capacity as a court of disputed returns to contest her election and her office has not become vacant. The NSWALC, by its Chief Executive Officer, interfered with the Applicant's performance of her functions as councillor representing the north coast region on the NSWALC in May 2008 by cutting off the remuneration and allowances to which she is entitled as a councillor under s 120(5) and (6) of the ALR Act. The Applicant is entitled to seek relief pursuant to s 20 of the Court Act from the Court as she is enforcing a right conferred by an environment and planning Act (which is not disputed by the NSWALC). 36 In relation to the cross-claim, the Applicant submitted that an election is a series of steps taken by different people under the ALR Act including the Minister (in calling for an election), the Electoral Commissioner, candidates and electors. These are administrative steps not amenable to judicial review, relying on McDonald v Keats [1981] 2 NSWLR 268 per Powell J at 284 and Dodd v Gandangara Local Aboriginal Land Council (1999) 106 LGERA 189 per Pearlman J at [55]-[56]. 37 The election of councillors under Div 3 Pt 7 of the ALR Act is separate from the removal of councillors from office and the filling of casual vacancies in Div 4. Each division is a comprehensive regime dealing with the subject matter and there is a clear demarcation between them. Division 3 is a comprehensive code for the constitution of the NSWALC, the qualification of persons to stand for election and be elected, the calling and conducting of elections for all councillors, the declaration of councillors, councillors to remain in office and for the constitution of NSWALC to be preserved pending disputes to elections and disputes to elections. Compliance with the Division ensures certainty. 38 Division 4 on the other hand provides for the removal of councillors from office comprehensively by defining the circumstances in which a person is disqualified from holding office, the circumstances in which a councillor vacates office, mechanisms for filling vacancies in the office of councillor and a mechanism for obtaining an order declaring a particular office has become vacant. Division 4 not only provides for the removal of councillors from office, it does so in a way that maintains their right to remain in office pending the completion of the process and preserves the validity of the constitution of NSWALC. This is done by providing for a certain time at which an order declaring an office vacant takes effect. While s 120(3) of Div 3 states that councillors hold office subject to the ALR Act that does not mean that Div 4 operates in relation to the election process regulated in Div 3. 39 The concept of holding the office of councillor was explained by Isaacs J in Lane v Atkin (1922) 30 CLR 437 at 444. A civic office in that case was described as an abstract statutory creation existing before the person is elected and existing in perpetuity, the occupancy of which the statute regulates. In s 132 and s 133 a distinction is drawn between vacating office and being disqualified from holding office and s 137 provides for an order declaring an office vacant to operate at a future time. The only sensible way of reading these provisions together is for disqualification under s 132 to have no effect of itself on whether a person holds office, for s 133 to have the effect of the person ceasing to hold office if they voluntarily relinquish it or die and for s 137 to have effect according to its terms. Once a person is elected as a councillor he or she remains in office until he or she dies, leaves voluntarily, or the Administrative Appeals Tribunal (ADT) makes an order under s 135 that a councillor's position is vacant and that order takes effect in the time frame nominated in s 137. NSWALC's submissions 40 The NSWALC submitted that the orders sought by the Applicant should not be made. The Applicant admitted that the statutory declaration she signed dated 11 April 2007 and provided to the returning officer was false (modified in oral submissions to "incorrect"). The statutory declaration purported to address the requirements of cl 47(1)(c) of the Regulation which require a candidate to declare he or she would not be disqualified from holding office as a councillor, and the declaration sworn was incorrect in that respect. The Applicant admitted that from 7 February 2007 until 11 March 2008 she was disqualified from holding office as a councillor (cl 7 points of claim and cl 9 first cross-defence). Further, the Applicant has never held the office of councillor. There is no dispute that the Court has the jurisdiction to determine the Applicant's claim under s 20(2) of the Court Act. 41 Because the NSWALC response to the Applicant's claim is otherwise contained in its cross-claim it is necessary to consider that together with the Applicant's claim. Cross-claim by NSWALC 42 As well as opposing the orders sought by the Applicant the NSWALC has filed a cross-claim naming the Applicant as First Cross-Defendant and the returning officer and Electoral Commissioner as Second and Third Cross- Defendants respectively. 43 The NSWALC seeks the following relief as outlined in the First Cross-Claimant's Amended Statement of Cross-Claim: 1. A declaration that the purported declaration by the Second Cross-Defendant dated 22 May 2007 that the First Cross-Defendant was elected as councillor for the North Coast Region of the NSWALC is void and of no effect. 2. Further in the alternative to order 1, an order quashing the purported declaration by the Second Cross-Defendant dated 22 May 2007 that the First Cross-Defendant was elected as councillor for the North Coast Region of the NSWALC. 3. An order quashing the decision of the Second Cross-Defendant in or about April 2007 not to reject the First Cross-Defendant's nomination as a candidate for election as a regional councillor of the NSWALC. 4. A declaration that the First Cross-Defendant is not, and at no time from 22 May 2007 has been, the councillor for the North Coast Region of the NSWALC. 4A A declaration that the Cross-Claimant is entitled, in light of s 132(1) (c) of the ALR Act to cease paying the First Cross-Defendant the remuneration and allowances of a councillor of the NSWALC as referred to in s 120(5) and (6) of that Act. 5. An order that: (a) the Second Cross-Defendant undertake further counting or recounting of the ballot papers cast for candidates in the North Coast Region of the NSWALC on 19 May 2007 for the purpose of determining the candidate entitled to be declared as elected to that office, on the basis that the First Cross-Defendant was not a candidate for that election; (b) the further counting or recounting of the ballot papers referred to be conducted as nearly as practicable in accordance with cl 76 of the ALR Regulation 2002; (c) upon the completion of the further counting or recounting, the Second Cross-Defendant declare the election result in accordance with s 123 of the ALR Act. 6. In the alternative to order 5, an order that an election be conducted by the Second and/or Third Cross-Defendant for the office of councillor for the North Coast Region of the NSWALC in accordance with Div 3 of Pt 7 of the ALR Act and Div 106 of Pt 5 of the ALR Regulation 2002. 6A. In the alternative to orders 5 and 6, a declaration that there is a casual vacancy in the office of councillor for the North Coast Region of the NSWALC. Issues - background 44 The Amended Cross-Claim exhaustively sets out the matters relied on by the NSWALC. 2007 elections for the offices of councillor of NSWALC 13. To be lawfully elected to the office of councillor for a New South Wales Aboriginal Land Council region, a person must be: a. duly nominated for election in accordance with cl.47 of the Regulation by the close of nominations; b. qualified to stand for election in accordance with s.121(4) of the Act; c. not disqualified from holding office under s.132(1) of the Act; and d. duly elected in accordance with div.3 of the Act and the Regulation. The First cross-defendant was disqualified 20. At no material time for the purposes of the 2007 election of councillors for NSWALC was the First cross-defendant's offence ignored for the purposes of the Act. 21. At all material times for the purposes of the 2007 election of councillors for NSWALC the First cross-defendant was and has been disqualified from holding the office of a councillor pursuant to s.132(1) of the Act. 22. In the premises, the First cross-defendant was not capable of being elected as a councillor of NSWALC at the 2007 election, and was not so elected. 22A Further and in the alternative to the preceding paragraph, if the first cross-defendant was elected at the 2007 election, she immediately vacated office as a councillor for the North Coast Region of NSWALC pursuant to sections 132 and 133 of the Act in light of the 2003 Conviction, and since that time there has been a casual vacancy in the said office. Failure properly to nominate 23. In the premises set out above, the First cross-defendant was not qualified to stand for election in light of the 2003 Conviction and s.132(1) of the Act. 24. Further, to be duly nominated as a candidate in an election for the office of councillor of NSWALC a person must be nominated in accordance with clause 47 of the Regulation. 25. The First cross-defendant failed to comply with the requirements of clause 47 for nomination as a candidate. Particulars (a) Clause 47(1)(c1) of the Regulation requires that the nomination of a candidate "be accompanied by a Statutory Declaration by the candidate, in a form approved by the returning officer, that the candidate is not disqualified from holding office under s.132 of the Act". (b) Pursuant to clause 83 of the Regulation it is an offence to make a false or wilfully misleading statement to the returning officer in connection with an election, or in any document that the person furnishes for the purposes of an election. (c) A candidate does not comply with clause 47(1)(c1) unless the Statutory Declaration provided is truthful and correct. (d) Any statutory declaration provided by the First cross-defendant to the Second cross-defendant for the purposes of the 2007 election was not correct in that it did not disclose the 2003 Conviction. 26. Any failure to comply with the requirements in relation to the nomination of a candidate must be rectified by the candidate before the date fixed for the close of nominations: clause 47(4) of the Regulation. 27. No rectification of the non-compliance referred to in paragraph [25(e)] above was undertaken by the First cross-defendant before the close of nominations at noon on 23 April 2007. 28. Clause 48 of the Regulation provides that the Returning Officer is to reject the nomination of a person as a candidate for an election if either: a. the person is not qualified to stand for election; or b. the person is not nominated in accordance with clause 47 and any failure to comply with the requirements of clause 47(1) is not rectified as provided by that clause. 29. In the premises, the Second cross-defendant was required by clause 48 to reject the nomination because both preclusions in clause 48(1) applied. 30. The Second cross-defendant failed to reject the nomination of the First cross-defendant as a candidate for the office of councillor in the 2007 election. 31. In the premises, the decision of the Second cross-defendant not to reject the nomination of the First cross-defendant was invalid. Summary of issues 45 Paragraph 13 of the cross-claim identifies the criteria which must be met before a person can be elected. There is no dispute the Applicant satisfies s 121(4). The criteria not satisfied according to the NSWALC are the failure to correctly nominate under cl 47 and that a candidate not be disqualified under s 132(1). Consequently the Applicant was not duly elected as a councillor. In its submissions the NSWALC identified three bases on which it argued the Applicant was not able to hold the office of councillor as a result of failing to satisfy these criteria. (i) The Applicant was incapable of being elected under the ALR Act and Regulation in May 2007 because she was disqualified from holding office from 7 February 2007 by virtue of s 132(1)(c) which took effect on that date. That incapacity cannot be cured by her nomination and acceptance of the nomination by the returning officer (issue 1). Prayers 1 and 2 relate to this issue. (ii) Alternatively, a similar argument applies at an earlier stage of the process for election of councillors under the ALR Act. The Applicant's nomination was not cured by the returning officer accepting her nomination or declaring her elected as a councillor. Consequently her nomination was null and void (issue 3). Prayer 3 concerns this issue. (iii) In the event that the Applicant was able to take office by virtue of s 120(3) and s 124(2), (3) of the ALR Act when still disqualified from holding office, the Applicant immediately vacated the office of councillor by force of s 133(e) of the ALR Act (issue 2). The relief in relation to this issue is found in prayer 6A, a declaration that there is a casual vacancy of councillor for the north coast region. 46 The numbering of the issues reflects the way matters were presented at the hearing. A. Was the Applicant elected as councillor in May 2007 (issues 1, 3 of cross-claim) 47 There is no dispute that the Court has jurisdiction to determine the Applicant's claim for relief pursuant to s 20(1)(e) and (2) of the Court Act. These proceedings are enforcing a right to hold office and to discharge functions under s 120 and s 123-124 of the ALR Act. Her right to remuneration and expenses is found in s 120(5),(6). The Court's jurisdiction to determine the NSWALC's cross-claim is disputed by the Applicant and the returning officer. (i) Court's jurisdiction to determine NSWALC cross-claim (issues 1 and 3) Relevant provisions in the Court Act 48 Sections 16(1) and 16(1A) provide: (1) The Court shall have the jurisdiction vested in it by or under this or any other Act. (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. 49 Section 20 of the Court Act relevantly provides: (1) The Court has jurisdiction (referred to in this Act as "Class 4" of its jurisdiction) to hear and dispose of: … (dd) proceedings under Division 5 of Part 7 of the Aboriginal Land Rights Act 1983, (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and (d) whether or not as provided by section 68 of the Supreme Court Act 1970—to award damages for a breach of a development contract. (2A) The Court has jurisdiction to hear and dispose of proceedings referred to in subsection (1) (dd). (3) For the purposes of subsection (2), a planning or environmental law is: (a) any of the following Acts or provisions: Aboriginal Land Rights Act 1983 (other than Division 5 of Part 7), Applicant/Cross-Defendant's submissions 50 The cross-claim disputes the validity of the Applicant's election and seeks orders for relief which render her election void. The Applicant (and the returning officer) disputed that the Court has jurisdiction to determine the first cross-claim pursuant to the Court's general powers in s 20 of the Court Act. The cross-claim does not assert a right under an environmental planning law. 51 The only basis on which the validity of an election can be disputed in the Court is as a court of disputed returns under s 125(1) of the ALR Act. That section confers exclusive jurisdiction on the Court and achieves finality in the declaration of an election result, see the unanimous judgment of the High Court in In Re Wood (1988) 167 CLR 145 at 160 and Dodd v Gandangara Local Aboriginal Land Council & Ors per Pearlman J at [56]. That exclusivity is conferred by s 124(2) and (3)(a) and the powers of the Court in s 125(3) of the ALR Act. Section 128(1) states that a decision of the Court under s 125 is final and conclusive and without right of appeal. There is a strict time frame for challenging an election under s 125(1) of 28 days from the date the returning officer publicly declared the result of the election. 52 Sections 20(1)(e) and (2) of the Court Act do not confer jurisdiction on the Court to hear the first cross-claim as it is inconsistent with s 125 of the ALR Act. That section was enacted after s 20 of the ALR Act and would render the temporal limitation ineffective. Further, s 20(1)(e) and (2) of the Court Act do not apply to disputes on the conduct of elections because such disputes are not in respect of a planning or environmental law as referred to in s 20 of the Court Act. 53 In National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 Kirby P (Mason CJ and Meagher JA concurred on this point) stated at 586 that this Court was a court of defined jurisdiction without an implied incidental power to deal with matters not otherwise falling into its statutorily defined jurisdiction. The cross-claim in relation to the Applicant/First Cross-Defendant seeks a declaration (prayer 4) that she is not and has never been a councillor. It is not a declaration of a right accruing to the NSWALC. Further support for limited jurisdiction of this Court is found in Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494 and Darkingjung Pty Ltd v Darkingjung Aboriginal Land Council [2006] NSWSC 42. There is no "right" in the ALR Act to have a particular kind of person elected. The right to have a properly run election is provided for in s 125, the court of disputed returns jurisdiction. 54 Only the matters in prayers 1, 2 and 3 of the Amended Statement of Cross-Claim concerning the exercise of functions of the returning officer could be construed as matters falling within s 20(2) of the Court Act. However, such functions can only be challenged under s 125 when the Courts sits as the court of disputed returns because the cross-claim is challenging steps in the election process (as per Dodd v Gandangara Local Aboriginal Land Council and McDonald v Keats) without a claim having been made pursuant to s 125, the returning officer's decision concerning the election are final. 55 The Applicant also made lengthy submissions that the Court Act is incorrect when it refers to Div 5 Pt 7 in s 20(3). Div 5 Pt 7 should be read as referring to s 125 in Div 3, inter alia. 56 In Re Wood is distinguishable. In that case the High Court dealt with a senator's eligibility to be elected under a division of the Commonwealth Electoral Act 1918 (Cth). The division conferred specific jurisdiction on the High Court to deal with referrals from either House of Parliament in relation to qualifications and vacancies. Section 360 is the equivalent of s 161 of the Parliamentary Electorates and Elections Act 1912 (Cth). The High Court held that conferral of jurisdiction was not read down by the existence of the court of disputed returns jurisdiction. The High Court held that Senator Wood was not elected as a senator and never held the position. In Re Wood is distinguishable because in this case the Applicant was not disqualified from being elected but only from holding office. She was qualified to stand and be elected. The Commonwealth Electoral Act includes provisions relating to candidates' qualification to stand and be elected. The ALR Act has different provisions. The Commonwealth Electoral Act has no s 120(3) or s 124 which provide for the effect of a declaration of an election. In Re Wood provides no basis for questioning the jurisdiction of the election of the Applicant. Second and Third Cross-Defendants (Returning Officer and Electoral Commissioner) submissions) 57 Eligibility for election is dealt with in s 121(4) of the Act (Div 3 Pt 7). A person must be a voting member of a local aboriginal land council within the region. Section 120(4) provides that a councillor is eligible for re-election. There are no other provisions prescribing criteria that must be met in order to be eligible for election as a councillor. Disqualification is dealt with in Div 4 entitled "removal from office" and s 132 identifies the circumstances in which a person already elected to office will be disqualified from holding office so as to render the office vacant. Section 132 does not establish criteria which must be met in order for a person to be eligible for election. 58 Clause 47 of the Regulation identifies those matters which a candidate for election must satisfy. Clause 48 specifies the circumstances in which the returning officer must reject a nomination. Those are the only grounds on which a person's candidature can be rejected. The returning officer has no power to reject a nomination of a person other than on the grounds set out in cl 48. Following an election, a returning officer has no discretion not to declare a candidate elected once s 123 is enlivened. That is confirmed by s 124(1) which provides that s 123 applies even if there is an application to dispute the election in the court of disputed returns under s 125. Section 124(3) is a statutory enactment of the common law de facto officer doctrine. A candidate who is publicly declared elected as a councillor is taken to hold office and is competent to carry out all the functions and duties of that office until a court of disputed returns decides otherwise under s 125, or the term of office expires, or the position becomes vacant. The scheme under s 123 and s 124 is unambiguous and provides certainty. 59 In light of these legislative provisions, the Court has no jurisdiction to declare the election invalid as the 28 days appeal period for the court of disputed returns has elapsed. There is an exclusive "code" for the declaration of invalidity of elections; see McDonald v Keats per Powell J at 27A. NSWALC's submissions 60 In its oral submissions the NSWALC submitted the following: (i) The Applicant conceded that prayers 1 to 3 of the Amended Statement of Cross-Claim fall within s 20(2) of the Court Act. The same can be said about prayers 4 to 6A of the relief claimed. (ii) If the Applicant can pursue her claim for relief, which is not disputed, the NSWALC claim is the reverse to that claim and can also be pursued. There cannot be a right as the Applicant asserts without a duty and the NSWALC cross-claim asserts that duty. Prayer 4A of the cross-claim seeks an order that the NSWALC is entitled to cease paying the Applicant remuneration and allowances as a councillor as provided in s 120(5) and (6). That is directly responsive to one of the orders sought by the Applicant. (iii) Further the claim is ancillary to the issues raised before the Court and can be determined under s 16(1A) of the Court Act. This is confirmed by Scharer v State of New South Wales (2001) 53 NSWLR 299 per Stein JA at [51] (Hodgson JA concurring) in 2001 which refers to the incidental, accessory or auxiliary nature of the ancillary jurisdiction. (iv) The Court has considered these kinds of cases before without there being a dispute about jurisdiction, see Connolly v Electoral Commissioner of New South Wales (1992) 76 LGRA 104 per Pearlman J. It is accepted by the Applicant that that case does not meet the repealed jurisdiction point also raised. (v) The Applicant's submissions (par 55) based on the Court Act being in error in referring in s20(3) to Div 5 Pt 7 should not be accepted. It is inherently unlikely. Section 20(2) operates in any event even if s 20(3) did not. Further even if Div 5 Pt 7 should be read as referring to s 125 in Div 3, the NSWALC does not rely on those provisions but seeks to distinguish them. The NSWALC relies on s 132 and s 133 in Div 4. (I agree with these submissions and do not need to further consider this part of the Applicant's case.) 61 The written submissions stated as follows: the distinction between qualification of candidates for office and vacancy of electorates and disputed elections has been addressed historically by the courts in Australia; see French J in Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 at 449-454. The distinction has continued in legislation in various jurisdictions including the ALR Act. In Re Walsh [1971] VR 33 the full court of the Victorian Supreme Court held a person was not capable of being elected to the Legislative Council within the meaning of s 73 of the Constitution Amendment Act 1958 (Vic) as he had been previously convicted of a felony. French J referred to this decision approvingly in Blurton at 453. 62 The NSWALC submitted that qualification was a necessary condition to a valid election and had to be fulfilled by the candidate chosen. Disqualification is a correlative concept. 63 The issue of disputed returns, while broader, overlaps with that of qualification, see Blurton per French J at 453-4 and also by implication in In Re Wood at 162-4. A wide range of issues can be dealt with under the concept of disputed returns. When this Court sits as a court of disputed returns under s 125(3) of the ALR Act the Court has the same powers as conferred by s 161 of the Parliamentary Electorates and Elections Act and those powers are very wide. 64 In In Re Wood the High Court considered the overlap between the two areas of disputed returns and election qualifications and held that it did have jurisdiction to determine whether Senator Wood had been qualified to be elected and therefore whether his Senate position was vacant despite the time for making an application to the court in a capacity as a court of disputed returns having elapsed. 65 The Applicant's submissions that the Court lacks jurisdiction are wrong. The 28 day period for mounting a challenge to an election under s 125(2) of the ALR Act is irrelevant for the same reasons as were found in In Re Wood by the High Court. The basis for distinguishing In Re Wood because this Court has no additional jurisdiction is wrong. Section 20 of the Court Act provides broad jurisdiction to enforce and make declarations of rights, obligations and duties under the ALR Act. Reliance on s 124(2) and (3) of the ALR Act as affirming her capacity to be elected distinguishes between being qualified to stand and being disqualified from holding office, but disqualification is the converse of qualification. The submission that five years have elapsed since the disqualifying event ignores the fact that she was disqualified from standing at the time of her nomination and election. She was not entitled to be nominated or elected and the election has not been completed. 66 The distinction between disputed returns/elections on the one hand and qualifications/vacancy on the other has been recognised and applied in this Court in relation to the ALR Act, see Burnum Burnum v Gandangara Local Aboriginal Land Council (1997) 93 LGERA 148 and Dodd v Gandangara Local Aboriginal Land Council. 67 The Applicant/returning officer proposed that s 125 of the ALR Act is the only mechanism for challenging an election of a councillor under the ALR Act. Further the Applicant argued that s 125 impliedly repeals s 20(2) to the extent that if a matter falls within the s 125 jurisdiction it does not fall within the general jurisdiction in s 20(2) of the Court Act. It is not legally correct to imply limitations on a general grant of jurisdiction such as s 20 of the Court Act, see the unanimous judgment of the High Court in Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404 at 421. Further, there is no implied repeal simply because s 125 of the ALR Act was enacted after s 20 of the Court Act. A similar argument was rejected in a unanimous judgment of the High Court in Shergold v Tanner (2002) 209 CLR 126 at 136-137. Both s 20 of the Court Act and s 125 of the ALR Act can stand together as the latter deals only with disputed elections and returns. It does not deal with every type of legal issue that may arise in relation to the election of a councillor to NSWALC. Nor does it address the issue of qualifications. 68 Similar wording to s 125(1) was considered in In Re Wood as s 353(1) of the Commonwealth Electoral Act is in similar terms yet did not restrict the additional jurisdiction under s 376 of that Act (see In Re Wood at 158-162). The construction of s 125(1) that it applies to matters of disputed elections and returns is entirely orthodox. Qualification for office can be dealt with either by way of disputed returns or by way of other legal challenge, in this case by invoking this Court's jurisdiction conferred by s 20 of the Court Act. Finding on jurisdiction in relation to issue 1 and 3 of cross-claim 69 Given that the Applicant was declared elected by the returning officer on 22 May 2007 and took office as provided for by s 120(3), s 124(2) and (3), if the NSWALC's cross-claim is not upheld she would be entitled to the declarations she seeks (subject to my determination on issue 2 which arises if she was elected). As part of determining if the declaration sought by the Applicant that she was elected and continues to be elected ought be made, it is necessary to consider the cross-claim by the NSWALC submitting that she was not validly elected and her election is void (issue 1) or that the nomination of the Applicant and the acceptance of the nomination was in breach of cl 47 and 48 so that the declaration by the returning officer of her election as councillor was null and void (issue 3). Whether the Court has jurisdiction to determine issues 1 and 3 must first be determined. Does s 20 of the Court Act apply? 70 The NSWALC bears the onus of establishing on the balance of probabilities that this Court can determine its cross-claim; Owners of 'Shin Kobe Maru' at 426. The starting point in determining whether the Court does have jurisdiction is whether the Court has power under s 20(2) to determine the cross-claim. The Applicant is enforcing a right under s 20(2) of the Court Act. The NSWALC's submission is that it is enforcing a correlative duty which falls on the Applicant so that it is simply seeking to obtain relief converse to that sought by the Applicant. While that submission has some logical appeal, on closer analysis the NSWALC is not enforcing a right, obligation or duty which it has under the ALR Act. Whether there is a correlative "duty" on the Applicant to make sure she is properly elected which arises from her right to be elected is debateable. Nor can it be said that the NSWALC has a right to certain persons being elected which it is seeking to enforce. I do not consider the cross-claim is enforcing a right or duty of the NSWALC to which s 20(2) can apply. A further reason that the Court would not have jurisdiction under s 20 is that the cross-claim challenges the validity of the Applicant's election but the court is not sitting as the court of disputed returns under s 125 of the ALR Act and the time to do so under s 125(2) has long expired. 71 I will consider the cases relied on by the NSWALC in order to determine whether s 20(2) of the Court Act provides the Court's jurisdiction to consider the validity of an election process where it is not sitting as a court of disputed returns. In Blurton, where the Federal Court was not sitting in its capacity as a court of disputed returns, French J discussed the historical distinction between issues of qualification of candidates and vacancies on the one hand and disputed returns on the other in the constitutions of Canada and the United States (at 452). Under s 47 of the Commonwealth of Australia Constitution Act 1900 (the Constitution) questions of qualification, vacancies and disputed elections were determinable by the Houses of Parliament. In 1902 s 192 of the then Commonwealth Electoral Act 1902 (Cth) first provided that the validity of elections could be disputed in the Court of Disputed Returns, (then and now the High Court of Australia). The Commonwealth Electoral Act in s 203 allowed the Houses of Parliament to refer questions on qualifications of members or a vacancy in either house to the court of disputed returns for determination. Section 376 in the current Commonwealth Electoral Act is identical. The historical distinction French J discussed is now reflected and incorporated into the Commonwealth legislation the subject of his judgment. The statutory frameworks he was considering provide specifically for issues about the qualification of candidates to be considered by the court of disputed returns. 72 In Re Walsh the Supreme Court of Victoria dealt with the question of whether a person who had been convicted of a felony was capable of being elected to the Legislative Council of Victoria. The court rejected the submission of Mr Walsh that it did not have jurisdiction to hear the matter because the question was in respect of the capacity of a person to be elected rather than the qualifications of the person. Under s 73 of the Constitution Act Amendment Act 1958 (Vic) any person was qualified to be elected as a member of the Legislative Council provided, inter alia, they have not been convicted of any felony. The court held that the question raised was one in respect of the qualification of a member which could be resolved by the court pursuant to the grant of jurisdiction as a court of disputed returns under s 300 of the Constitution Act Amendment Act. 73 The unanimous decision of the High Court in In Re Wood concerned whether there was a vacancy in the Senate for the place of Senator Wood and if there was how that should be filled. Senator Wood was not qualified to stand for election as he was not an Australian citizen, as required by s 163(1)(b) of the Commonwealth Electoral Act. The time for disputing his election in the High Court acting as a court of disputed returns, as provided for in Pt XXII Div 1 – Disputed Elections and Returns of the Commonwealth Electoral Act, had expired. The initial issue to arise therefore was whether the High Court had jurisdiction to consider the issue of his qualification for standing for office. The court held it did have jurisdiction under Pt XXII Div 2 – Qualifications and Vacancies which division concerned qualifications and vacancies of councillors. That jurisdiction was identified in s 376, which provides that any question concerning the qualification of a senator can be referred to the court of disputed returns by one of the Houses of Parliament. The High Court considered that jurisdiction conferred on the court of disputed returns by Div 2 (Qualifications and Vacancies) was not restricted by the terms of Div 1 (Disputed Elections and Returns) which contained the temporal limitation. Part of the court's reasoning was based on the language in s 376 being in the same terms as s 47 of the Constitution. The High Court had jurisdiction to determine the issue notwithstanding that it also involved consideration of whether the senator was duly elected and his election void. 74 Equivalent provisions of the Commonwealth Electoral Act, in particular s 376, are not found in the ALR Act. That section refers to the High Court sitting as the court of disputed returns when a reference is made to it under s 376 and was the basis jurisdiction was found to exist in In Re Wood. The High Court's jurisdiction to consider issues of qualification to be elected is therefore expressed within the statute. The Parliamentary Electorates and Elections Act 1912 (NSW) provides similarly in s175B, as does the Victorian legislation. Reliance on these cases does not assist the NSWALC's argument as the statutory provisions are different to those in the ALR Act and the Court Act. The cases it relied on concerned a statutory framework that explicitly confers a separate jurisdiction on the court to sit in its court of disputed returns jurisdiction to deal with qualification for office affecting the validity of the election of a candidate. No such provision is contained in the ALR Act. 75 McDonald v Keats, a decision of a single judge of the Supreme Court of NSW, considered whether that court had jurisdiction to determine an attempted challenge to a NSW parliamentary election when the court was not sitting as a court of disputed returns as referred to in s 155 of the Parliamentary Electorates and Elections Act. Section 155 stated that the validity of an election could be disputed in the court of disputed returns and not otherwise. At issue inter alia was whether the court could require the returning officer to recount ballot papers. Powell J held at 274 that the provisions of that Act provided a comprehensive code for the circumstances in which the electoral process could be considered. He did not consider he had jurisdiction to make the orders sought. That case was not dealing with the qualification of a candidate to stand for election but as noted above (par 74) there is a specific section of the Parliamentary Electorates and Elections Act that deals with that issue. 76 Cases decided by this Court have distinguished between the Court sitting as a court of disputed returns under the ALR Act and the exercise of its jurisdiction under s 20(2) of the Court Act. In Burnum Burnum (1997) Pearlman J held at [153[-[154] the application was enforcing compliance with a duty of the local aboriginal land council in relation to the election of councillors. The challenge to the validity of the meeting called pursuant to cl 42 of the now repealed Aboriginal Land Rights Regulation 1996 was not a challenge to the validity of the election and could therefore be considered. The disputed meeting was a means of ensuring that each roll of the local aboriginal land council was complete. That was not a step in the election process and could be considered. Accordingly, the Court had jurisdiction to consider the matter under s 20(2)(a) and (c) and s 20(3). The matter was not excluded by the (then existing) exception in s 20(3) for disputes arising under the then Div 2B of Pt 4 which dealt with the Court's jurisdiction as a court of disputed returns. 77 In Dodd (1999) the issue was whether the applicant was eligible to stand as a candidate for a regional ALC, which required that he be a member of a local ALC. Pearlman J considered at [57] she could deal with that issue as the matter, like Burnum Burnum, concerned membership of the roll and was not part of the election process. The latter could otherwise be challenged only when the Court sat as a court of disputed returns. 78 In Burnum Burnum and Dodd the matters being considered were held to relate to matters outside the election process. Both cases confirm that the Court considered there was a clear demarcation of jurisdiction. If the election process is to be challenged such challenge must be conducted when the Court sits as a court of disputed returns. Neither case was considering the issue of whether a candidate was qualified to stand for election. 79 The only case in this Court referred in submissions with some similarity to this matter is Connolly v Electoral Commissioner of New South Wales (1992). Pearlman J had to consider the validity of the election process as the issue in that case was whether a candidate elected as a councillor representing the south coast region on the NSWALC was validly elected. Her Honour held the candidate was not qualified to stand and could not be declared elected by the returning officer. There is no discussion of jurisdiction in the judgment, no doubt because it was not raised as an issue. Her Honour does not state whether the Court was sitting as the court of disputed returns (then under s 27AC(1) of the ALR Act) but I infer that is the likely explanation for the Court having jurisdiction as the relief sought included an order preventing the returning officer from declaring the candidate elected to office. The relief sought suggests the action was brought within the time frame required for challenges to the Court when sitting as a court of disputed returns. 80 For completeness I note that the Applicant also referred to two cases determined by the Supreme Court as supportive of the submission that this Court does not have jurisdiction (Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council and Darkingjung Pty Limited v Darkingjung Aboriginal Land Council). In Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council, the applicant was a statutory body established under the ALR Act to conduct a contributory funeral benefit scheme for aboriginal bodies. The respondent was also a statutory body established under the ALR Act that intended to commence a competing scheme. The applicant sought to enforce s 11 of the Funeral Funds Act 1979 which permitted only funeral contribution funds to conduct contributory funeral benefit businesses unless a statutory exemption was applicable. The applicant claimed that the exemption granted to the respondent was void. The respondent submitted the NSW Supreme Court was unable to hear the challenge because the Land and Environment Court of NSW had exclusive jurisdiction to enforce matters arising under the ALR Act pursuant to s 20(1)(e) of the Court Act. Sheller JA (with whom Handley JA and Simos AJA concurred) rejected this submission on the grounds that the proceedings did not seek to enforce any right, obligation or duty conferred or imposed by the ALR Act. 81 In Darkingjung Pty Limited v Darkingjung Aboriginal Land Council, a single judge of the Supreme Court of NSW rejected an argument that it had no jurisdiction to determine the matter due to the exclusive jurisdiction of this Court. The plaintiff, as trustee of a local aboriginal land council trust, sought declarations that money relating to a sale of land was held by the plaintiff on trust. Bergin J determined that the Supreme Court had jurisdiction to hear the matter as the plaintiff was not seeking any relief under the ALR Act that is described in s 20(2) of the Court Act. Aboriginal Community Benefit Fund Pty Ltd and Darkingjung concerned entirely different factual and legal issues to this matter and do not therefore provide great assistance in resolving the question of jurisdiction in this matter. The issues arising in those cases simply did not come within the scope of s 20(2) of the Court Act, which is not the nature of the jurisdictional question I must resolve. 82 The cases of McDonald v Keats, Burnum Burnum and Dodd emphasise that the Court's jurisdiction to consider the validity of an election as the court of disputed returns is limited by the express terms of the relevant Act, including the ALR Act. The fundamental issue of whether a candidate is qualified to stand for office can be considered by the Court sitting as the court of disputed returns (Connolly), which necessarily requires the application to be made within the specified timeframe in s 125(2). 83 Cases such as In Re Wood, Blurton and Re Walsh reflect different statutory contexts with specific and separate provisions enabling a court to determine the issue of the qualification of a candidate and the validity of an election. Given the clear terms of the ALR Act concerning when the court of disputed returns is to operate in s 125, I do not consider such a separate jurisdiction can be implied, as would have to be the case under the ALR Act. The limits of the court of disputed return jurisdiction of this Court is clear in the ALR Act. There is a limited timeframe for the commencement of any application to it under s 125(2) and the decision of the Court when sitting as a court of disputed returns is final and without appeal (s 128 ALR Act). Those cases cannot provide a basis for jurisdiction to be implied under s 20 of the Court Act. 84 While the NSWALC argued that there should not be an implied repeal of jurisdiction in the absence of an express repeal, the particular statutory framework pertaining to challenges to the validity of an election under the ALR Act suggests that s 20(2) of the Court Act cannot be relied on to found jurisdiction in this matter for the NSWALC cross-claim. Does s 16(1A) of the Court Act apply? 85 The NSWALC also argued that, in the alternative, the matter can be dealt with under s 16(1A) of the Court Act. The Applicant argued that s 16(1A) could not apply, relying on Stables Perisher Pty Ltd to argue that the Court does not have implied incidental power as it is a court of limited jurisdiction. Section 16(1A) was introduced in 1993 (by the Local Government (Consequential Provisions) Act 1993), after the decision of the Court of Appeal in Stables Perisher Pty Ltd (1990). The broad scope of s 16(1A) was confirmed by Stein J (Hodgson JA concurring) in Scharer (2001), as identified in the NSWALC arguments. The broad scope of s 16(1A) has been recognised by the Court of Appeal (and several decisions of this Court) in quite different contexts to the ALR Act. In Newcastle City Council v Caverstock Group Pty Ltd and Anor (2008) 163 LGERA 83 Spigelman CJ referred in obiter to the possible application of s 16(1A) to found jurisdiction on the issue of whether a person is entitled to a refund of payment made under a condition of consent. In Arnold v Minister Administering the Water Management Act 2000 (2008) 163 LGERA 429 Spigelman CJ held (Allsop P and Handley AJA agreeing) that s 16(1A) gave the Court federal jurisdiction on matters falling within the Court's s 16 jurisdiction. In the context of judicial review proceedings under the Water Management Act 2000 the constitutional validity of Commonwealth Acts concerning the making of a water-sharing plan could therefore be considered by this Court. 86 The issues raised in the cross-claim are ancillary to the Applicant's claim seeking a declaration of a right under the ALR Act. Section 16(1A) does theoretically apply to found the Court's jurisdiction to determine this issue. The further issue to be determined is whether the Court can consider the validity of the Applicant's election under s 16(1A) of the Court Act when it is not sitting as a court of disputed returns under s 125 of the ALR Act. Another way of stating this issue is whether there is an implied repeal or limitation on the Court's jurisdiction under s 16(1A) in light of s 125 of the ALR Act. That issue does not appear to have arisen in any case to which I have been referred. 87 The NSWALC submitted that an implied repeal of a court's jurisdiction based on the High Court decision in Shergold (2002) should not be lightly accepted in the absence of express repeal. In Shergold access was sought to documents under freedom of information (FOI) legislation. In response, a certificate was issued by the relevant government authority denying access to the documents on public interest grounds. There was a right to challenge FOI decisions in the Administrative Appeals Tribunal (AAT) but in respect of certificates the AAT has relatively limited powers. Instead judicial review of the decision to issue the certificate was sought in the Federal Court. The question arose of whether the jurisdiction of the Federal Court to determine the challenge was impliedly repealed by the grant of jurisdiction conferred on the AAT under the relevant legislation. The unanimous judgment of the High Court found there was no evidence of a parliamentary intention to limit the Federal Court's jurisdiction and no implied repeal was established. The earlier decision of the High Court in Owners of 'Shin Kobe Maru' (1994) confirms that express repeal should not be accepted lightly. 88 This matter is finally balanced given the importance of the court of disputed return jurisdiction, which I have referred to above in the context of determining whether jurisdiction exists under s 20 of the Court Act. Section 16(1A) is broadly drafted to enable the Court to resolve the issues before it and has wide scope, as confirmed by the Court of Appeal in at least two cases, albeit in quite different circumstances to this matter. As s 16(1A) was introduced in 1993 after the court of disputed returns provisions in the ALR Act it is not accurate to consider the issue as one of implied repeal, rather the question is whether there is an implied limitation on the jurisdiction conferred by s 16(1A). In all the circumstances I do not consider there should be any implied limitation on the Court's jurisdiction in s 16(1A) by s 125 of the ALR Act (and predecessor sections which have always been in the ALR Act). 89 Section 16(1A) of the Court Act applies to found the jurisdiction of the Court to consider issues 1 and 3 raised by the NSWALC's cross-claim. Even if I am wrong and the court does not have jurisdiction I would still determine the substantive issues raised by the parties in relation to issues 1 and 3 given the lengthy argument I heard on the substantive matters in issue. (ii) Substantive matters in issues 1 and 3 NSWALC submissions 90 Because of the Applicant's conviction in 2003 for a driving offence with a maximum penalty of two years imprisonment the Applicant was disqualified by s 132(1)(c) of the Act from holding the office of councillor for five years until 11 March 2008. As the Registrar refused to determine to ignore the 2003 conviction under s 132(2) of the Act on 19 May 2008, the Applicant was not capable of being elected as a councillor of NSWALC. The two criteria not satisfied had to be met in order for the Applicant to be properly elected were that she nominate correctly in accordance with cl 47(1)(c1) of the Regulation and that she not be disqualified under s 132(1) of the Act. 91 The Applicant was not qualified to stand for election because of s 132(1) of the Act as she was not nominated in accordance with cl 47 of the Regulation. Under cl 83 of the Regulation it is an offence to make a false or wilfully misleading statement to the returning officer in any document furnished for the purposes of the election. Only a statutory declaration that is truthful and correct complies with cl 47(1)(c1). The statutory declaration supplied by the Applicant was not correct because it did not disclose the 2003 driving conviction. There was a failure by the Applicant to comply with the requirements for the nomination of a candidate and no rectification of the failure to comply with cl 47 was provided before the date fixed for the close of nominations as per cl 47(4). 92 In relation to the returning officer (APOCC cl 28-31), the NSWALC argued that cl 48 of the Regulation requires the returning officer to reject a nomination of a candidate if the nomination is not in accordance with cl 47. The returning officer should have rejected the nomination of the Applicant/First Cross-Defendant because cl 48 was not satisfied. The Applicant was not qualified to stand for election and there was not a nomination in accordance with cl 47(1), there being no rectification of the nomination before the date nominations closed as provided for in cl 47(4). The NSWALC does not allege that there was an obligation on the returning officer to make inquiries as to whether the statutory declaration required by cl 47(1)(c1) was correct as part of determining whether a nomination should be rejected under cl 48. 93 It was a condition of the Applicant's nomination that she complete a statutory declaration to the effect that, inter alia, she was not disqualified from holding office. Having provided a false declaration she misled the returning officer and the electors in the region for which she was standing. Section 132 manifests the Parliament's intention to restrict the eligibility of those who are qualified to hold the important office of councillor of NSWALC which includes responsibility for allocating substantial funds. This underlying purpose should be promoted by the Court pursuant to s 33 of the Interpretation Act 1987. The Applicant's arguments undermine the significance of s 132 of the ALR Act. The principle of certainty of elections is an important public interest principle but that is not the only public interest principle at stake. Applicant's submissions on cross claim - issue 1 94 The NSWALC argued incorrectly that because the Applicant was disqualified from holding the office of councillor from 7 February 2007 she was incapable of being elected under the ALR Act and that incapacity could not be cured by the declaration of the returning officer that she was elected. 95 Issue 1 depends on the acceptance of the proposition that the combined effect of s 132(1) of the ALR Act and the words "subject to this Act" in s 120(3) of the ALR Act means that the Applicant was prevented from ever holding the office of councillor. The Court would also have to accept that s 124 of the ALR Act has no application in this case because there has been no application pursuant to s 125 to the Court as a court of disputed returns. (i) the Applicant was qualified to stand for election and be elected and was elected 96 The Applicant was qualified to stand for election and be elected pursuant to s 121(4) of the Act. She was elected pursuant to an election conducted in the manner specified in Div 3 under s 121(1) and was declared elected pursuant to s 123. None of these provisions are subject to the Act, specifically whether or not the Applicant is disqualified from holding office. While NSWALC has focussed on s 120(3) as being subject to the Act that is referring to the period over which a person holds office. It is so expressed because when a person's term ends may be affected by other provisions which deal expressly with such matters (s 124(3), 133, 135-137, 226(2)). (ii) holding office is different to standing for election and being elected 97 The text of s 132 does not support the NSWALC's argument. It refers to holding office as a councillor but not to standing for election or being elected. The use of the words "from holding office" in s 132(1) should not be overlooked. These words are consistent with s 132 applying to the removal of a councillor from office and not whether the councillor may be or has been elected to the office. Whether a person is qualified to stand for election or to be elected is dealt with in s 121(4), which is not expressed to be subject to the ALR Act. Section 132 cannot affect the fact that the Applicant was qualified to stand for election and be elected and therefore take office. (iii) section 132 is in Div 4 not Div 3 of Pt 7 98 Section 132 is in Div 4 (Removal from office) and is not concerned with the election of councillors only their removal following them taking office. If it was intended that s 132 would have the effect of preventing a person being elected as a councillor it should have been referred to in Div 3 (Councillors of NSWALC). (iv) the election process trumps s 132 (Applicant's submissions differ from returning officer on this point) 99 Section 132 should be read with s 133(e) which is the only other section which uses the term disqualified. "Becomes disqualified" in s 133(e) evinces an intention in the ALR Act that only events that occur after a person is a councillor are intended to affect them holding office. This is confirmed by the alteration of the words from the section which preceded s 133(e). Section 113 which dealt with vacancy in office stated that the councillor's office becomes vacant if the councillor "is disqualified". The intention that only events after election lead to disqualification is also supported by In re Wood at 168 and Connolly v Electoral Commissioner of New South Wales (1992) Pearlman J at 112. 100 Section 132(1) does not provide for such disqualifications to prevent a person taking office because the electors decide whether a person is fit by casting their votes. It is only if the relevant circumstance occurs after the election that there are consequences. This is because the councillor who becomes disqualified after taking office has not been subjected to the scrutiny of an election after the disqualifying circumstance arose. Such an approach is consistent with the purpose of the ALR Act in s 3(b) to provide for representative aboriginal land councils in NSW. The NSWALC approach does not give credence to the election process, the purpose of self-determination for Aboriginal people which underpins the ALR Act or the associated purpose of certainty in elections. 101 As the Applicant stood for election and was elected, the fact that she was disqualified from holding office at the time is irrelevant because the electors had decided she was the person they wanted to represent them. Whilst she did sign an incorrect statutory declaration it has not been alleged that she committed fraud. As the requirement to provide the statutory declaration is imposed by the Regulation not the Act, it does not assist in properly construing the Act. Even if it could it would be a perverse result if the erroneous statutory declaration contained an error with the implied effect of preventing the Applicant holding office after being elected when the penalty for such an error in cl 83 of the Regulation is five penalty units ($550). 102 The provision of an incorrect statutory declaration is clearly a matter which could have lead to orders reversing the Applicant's election if an application had been made in time to the court of disputed returns. The possibility that nobody may find out that the statutory declaration was erroneous until the 28 day period for an application under s 125 had elapsed, does not acknowledge the public nature of the election process which involves voting by the public, campaigning and investigation of candidates. Criminal convictions are a matter of public record. The evidence in relation to the challenge to the Registrar's decision shows the NSWALC was able to obtain information about the Applicant's conviction for driving while unlicensed. The Court is not in a position to assess how difficult it would be for someone to find out all the criminal convictions of a candidate. Even if that matter was taken into account the Court would have to decide how difficult it would have to be before it affected the construction of the ALR Act. (v) section 132 contains no consequences but s 133(e) does 103 Section 132(1) does not expressly provide for any consequence of a person being disqualified from holding office, and therefore there are none under that section. That weighs against the argument that the consequence of s 132(1) applying to a person is that she cannot be elected and hold office. Section 133(e) provides a consequence for disqualification under s 132. That express provision suggests there are no implied consequences not expressed, particularly if these arise under another Division and would overlap with s 125. The heading of s 132 while not part of the ALR Act does assist in confirming the ordinary interpretation of the section: s 35(2) and s 34(1) of the Interpretation Act. Further, if s 132(1) had automatic consequences there would be no opportunity for the Registrar to consider and determine an issue under s 132(2) before the consequences occur. This would create difficulties in trying to undo what has already been done if the Registrar determined in favour of the person. There is no power for the Registrar to reinstate a candidate once his/her position is vacated. Nothing in the text of s 132(2) and (3) suggests that he can do so. It is also contrary to s 134 which provides a mandatory method of filling casual vacancies once they arise. (vi) section 63(2) v s 121(4) 104 The provision of the ALR Act (s 63(2)) concerning eligibility as a board member of a local aboriginal land council should be contrasted with s 121(4) concerning eligibility of a councillor on the NSWALC. (vii) there are no remedies under the Act if NSWALC correct 105 If the NSWALC's submissions are correct that a person who is elected as a councillor whilst disqualified from holding office does not hold and never has held office, that has implications for the validity of the NSWALC's constitution in the meantime. Section 124(4) preserves validity when there is a disputed return under s 125. 106 There is no provision for commencing proceedings to determine if the person holds or should continue to hold office. In the cases where a court has had jurisdiction to determine whether a person holds office when not sitting as a court of disputed returns the court has had a second specific grant of jurisdiction, see In Re Wood, Blurton. The relevant statutory frameworks in these cases are distinguishable. Blundell v Vardon (1907) 4 CLR 1463 at 1513, Martin v Nicholson (1850) 1 Legge 618 and McDonald v Keats at 274 are examples where no jurisdiction was found in the absence of a special grant of jurisdiction despite the courts in these cases being superior courts. 107 There is no provision for what orders can be made by this Court in such proceedings. Under s 125(3) the Court when sitting as a court of disputed returns has the powers conferred on it by s 161 of the Parliamentary Electorates and Elections Act. The remedies sought by the NSWALC for the setting aside of the returning officers decision and for the declarations that the Applicant's election was invalid and that a new election be held are not available. Further, there is no mechanism by which the vacant office can be filled because there is no casual vacancy meaning the procedure in s 134 does not apply. Nor is there a mechanism in the ALR Act for the calling of a fresh election because s 122 (Timing of elections) applies to the election of all councillors. Applicant's submissions on issue 3 108 The NSWALC's argument that a councillor once elected is automatically prevented from holding office overlaps and is inconsistent with the court of disputed returns jurisdiction in s 124 – s 126. Other legislative schemes dealing with elections provide for express consequences of disqualification provisions once an election has occurred, see for example s 276 of the Local Government Act 1993 (the LG Act). 109 Section 132 says nothing about challenging a decision of the returning officer. Section 125 is the section under which a challenge to an election can be made. Clause 80 of the Regulation prohibits challenges to the decision of the returning officer. Clause 48(1)(b) is a procedural provision in any event which has not been breached by the returning officer. Even if breached, the result should not be invalidity of the election. Second and Third Cross-Defendants' Amended Points of Defence to NSWALC cross- claim and submissions on issues 1 and 3 110 The returning officer and the Electoral Commissioner of NSW filed Amended Points of Defence. The Amended Points of Defence deny cl 13(c) of the Applicant's cross-claim that to be elected to the office of councillor a person must not be disqualified from holding office under s 132 of the Act. In response they state at cl 3(c) that s 132 has effect according to its terms. Similarly in response to the cross-claim that the Applicant was not capable of being elected as councillor (cl 22), the Second and Third Cross-Defendants state that s 123-125 and s 128 have effect according to their terms. (response to cl 13, 22A, 23, 24 of cross- claim). Further, it is denied in cl 9A that the Applicant immediately vacated office if elected (cl 22A of the cross-claim) and it is stated that instead s 132 and s 133 should have effect according to their terms. At cl 12 the Second and Third Cross-Defendants deny cl 25 of the cross-claim that the Applicant failed to comply with the requirements of cl 47 for nomination as a candidate. The Second and Third Cross-Defendants admit at cl 14 that any failure to comply with the requirements of cl 47(4) must be rectified by the candidate before the date fixed for the close of nominations but denies cl 29-31 of the cross-claim that any decision by the returning officer not to reject the nomination was invalid. The election of the Applicant was not invalid and the declaration of the election of the First Cross-Defendant was not void and of no effect. In response to cl 34, the Second and Third Cross-Defendants assert that s 132, 133 and 135 must be read according to their terms and that they do not know and cannot admit that the office held by the Applicant is vacant or that the requirement for such a councillor to be elected has not been fulfilled. 111 The Second and Third Cross-Defendant submitted that central to the NSWALC's argument is that the returning officer is required by cl 48 of the Regulation to reject a nomination for a candidate at an election if that person would, if elected, be disqualified from holding office under s 132(1) of the Act. Firstly, a candidate does not comply with cl 47(1) unless the statutory declaration provided is truthful and correct. Secondly, the NSWALC contends that a person is not "qualified to stand for election" under cl 48(1)(a) unless, if elected, they would not be disqualified from holding office under s 132(1) of the Act. Both submissions have the effect of imposing an obligation on a returning officer to look behind a statutory declaration submitted pursuant to cl 47(1)(c). That is not something a returning officer is capable of addressing and could not be done as a practical matter given that many of the grounds in s 132(1) require subjective assessment, for example mental incapacitation per s 132(1)(d). (i) proper construction of cl 47(1)(c1) 112 Clause 47(1)(c1) indicates a legislative intention that persons who would, if elected, be disqualified from holding office, should not stand for election. This is unsurprising. It is obviously undesirable that a person should stand for election if he or she is liable, immediately upon election to office, to be disqualified from holding that office. The legislature gives effect to this intention by requiring a nomination for election to be accompanied by a statutory declaration that the candidate would not, if elected, be disqualified from holding office under s 132. 113 What is required in order to comply with cl 47(1)(c1) is straightforward and unambiguous. The clause requires a candidate to submit a statutory declaration in a form approved by the returning officer for the purposes of that clause and no more. If a person does not submit a statutory declaration as required, the returning officer must reject their nomination: cl 48(1)(b). There is no requirement, however, that the returning officer must reject a nomination unless he or she has determined that the statutory declaration submitted in support of the nomination under cl 47(1)(c1) is true and correct. 114 If a statutory declaration is not true and correct and this is discovered after a person has been elected then he or she becomes disqualified under s 133. Proceedings may be brought in the ADT to seek an order declaring the office of a particular councillor vacant: s 135. Alternatively if a person has been elected to office on the basis of a false or wilfully misleading statutory declaration made under cl 47(1)(c1) that person may be prosecuted under cl 83 and will, if convicted, become disqualified under s 132(1)(b) (unless the Registrar chooses to exercise his or her discretion in favour of that person under s 132(2)). 115 In circumstances where there are available mechanisms to ensure that a person who has provided a false statutory declaration may be removed from office, there is no basis for reading into cl 47(1)(c1) a requirement that the returning officer go behind the statutory declaration to assess its truth or correctness. (ii) proper construction of cl 48(1) 116 Qualification to stand for election and disqualification from holding office, as those terms are used in both the Act and the Regulation, are separate and distinct concepts. Clause 48(1) requires the returning officer to reject a nomination for election if a person is not qualified to stand for election. It is submitted that "qualified to stand for election" in cl 48 means qualified to stand for election within the meaning of s 121(4) where the identical language is used. The phrase "qualified to stand for election" in cl 48 does not encompass a requirement that a person would, if elected, not be disqualified from holding office under s 132. If this were the case, the returning officer would be required to look behind a statutory declaration submitted under cl 47(1)(c1) and determine whether a person would in fact be disqualified. Whether a person would be disqualified cannot be readily determined and it is not appropriate to the function of determining whether a person would be disqualified from office, if elected, to be conferred on the returning officer. 117 The effect of cl 48(1)(a) is that, in addition to complying with the requirements of cl 47(1), a candidate for election must in fact be qualified to stand for election, that is he or she must be a voting member of a local aboriginal land council for the region in which he or she seeks election. Whether a person is in fact so qualified within the meaning of s 121(4) is objectively and readily ascertainable by the returning officer. It is evident on the face of the electoral roll. Finding on issues 1 and 3 in cross-claim 118 The NSWALC argued that the Applicant was incapable of being elected as a councillor because she was disqualified from holding the office of councillor at the time of her election. That incapacity is not cured by the declaration by the returning officer that she has been elected (issue 1). The Applicant and Second and Third Cross-Defendants argued that Pt 7 Div 3 (election of councillors) and Div 4 (removal from office) of the ALR Act are separate. As the Applicant was qualified to stand for election and has been properly declared elected under Div 3 and the 28 days for an appeal to the court of disputed returns has expired, then she is entitled to the orders she seeks confirming her position as a councillor. Issue 3 focusses on the nomination process and whether at that stage the nomination should have been refused. 119 The issues raised by the parties require the Act and Regulation to be construed. Part 5 of the Interpretation Act contains well known general rules applicable to the interpretation of statutory provisions. Section 33 requires preference to be given in interpretation to a construction which would promote the purpose or object of an Act over one which would not. Guidance on applying this approach was provided by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355 at 381 which also stated that a meaning of a provision which is clear on its face should be applied. Brennan CJ and McHugh J also referred to the necessity of applying a construction of a statute consistent with its purpose in IW v City of Perth (1997) 191 CLR 1 at 12. Section 34 of the Interpretation Act restricts extrinsic material which can be considered by the courts but expressly permits reference to second reading speeches at s 34(2)(f). Section 35 states that headings of parts or divisions of an Act are to be considered part of the Act (headings of sections are not). In so far as there is no inconsistency with the Interpretation Act, common law principles of interpretation also apply. The principle that general words to be given their primary and natural significance is referred to in Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 per Dixon J at 647. The principle that all words in a provision are to be given full meaning and effect was stated in the oft-cited Commonwealth v Baume (1905) 2 CLR 405. 120 Difficult construction issues arise from the parties' argument because while the provisions of the Act and Regulation are generally clear on their face, how they should be applied in the context of the facts of this matter is not straightforward. Applying a construction which is consistent with the purposes of the Act does not enable the appropriate construction to be easily divined in the particular circumstances of this matter. (i) nomination as a candidate 121 I will first consider the steps required for a candidate to seek election as a councillor of the NSWALC. In relation to the requirement to nominate as a candidate for election, there is an overlap between Div 3 and Div 4 by virtue of the requirement in cl 47 of the Regulation specifying the manner of nomination of a candidate. The making of that Regulation is provided for by s 121(2) of the ALR Act which states that regulations can be made concerning the election of councillors. A nomination for election as a councillor under Div 3 must, inter alia, be accompanied by a statutory declaration by the candidate in an approved form that the candidate is not disqualified from holding office under s 132 (Div 4) of the Act. In order to nominate as a candidate the Applicant was required to provide the statutory declaration referred to in cl 47(1)(c1) to the returning officer. Under cl 47(4) any failure to comply with the nomination of a candidate must be rectified before the close of nominations. This did not occur. 122 As submitted by the Applicant, delegated legislation, which includes regulations, is not generally to be used to construe the principal Act, see also Pearce D C and Geddes R S, Statutory Interpretation in Australia, 6th edition, LexisNexis Australia 2006 at p 134 [3.41]. There are some exceptions such as where Regulations are considered as a means of understanding a scheme established under an Act and its Regulations or where there is an ambiguous statutory provision. These exceptions do not arise in the context of the ALR Act in my view. The rules of statutory construction do not allow the requirements for the nomination process under cl 47 to equate to an essential eligibility criteria for election such as that found in s 121(4) of the principal Act. 123 The scheme of the Act for the nomination of candidates as councillors and the operation of cl 47 and 48 as articulated by the returning officer is largely correct. I adopt the submissions on the construction of cl 47(1)(c1) summarised above in par 113-115. The only matter that I may depart from in the submissions concerns whether the ADT is the only entity which can determine whether a vacancy arises under s 133(e). This qualification only arises because of the unusual circumstances of this matter where the Court has before it a challenge to the Registrar's determination, about which I say more later in the judgment. The submissions at par 116-117 concerning the operation of cl 48(1) are also correct. Consequently, the Applicant's nomination under the Act was correctly accepted by the returning officer in accordance with the Act and Regulation. 124 As submitted by the Applicant's counsel, while the Applicant admitted that the statutory declaration was incorrect she has not been charged with an offence under cl 83 of the Regulation that she made a false or wilfully misleading statement to a returning officer. If successfully prosecuted for such an offence the penalty is five penalty units, presently $550. I agree that the scheme of the Act does not suggest that a failure to swear a correct statutory declaration has the consequence that her election is subject to being declared invalid and void other than by a court of disputed returns. 125 Further, the requirement set out in cl 47(1)(c1) of the Regulation does not become, by virtue of s 120(3) stating "subject to this Act", an essential criterion for qualification as a candidate such that the failure to comply vacates the election of a councillor. I agree with the Applicant's submission that s 120(3) stating that it is "subject to this Act" is directed to the time for which the office of councillor is held, not to whether the candidate elected is eligible for election of a councillor. 126 Consequently, in relation to issue 3 I have essentially agreed with the submissions of the returning officer that if a nomination on its face complies with cl 47(1)(c1) there is no discretion provided under the Act to the returning officer to refuse a nomination under cl 48 of the Regulation. The scheme of the Act does not include the imposition of a requirement on the returning officer to check whether a statutory declaration of a candidate is valid or whether that candidate is qualified to stand for election. Given that the NSWALC does not argue that there was any obligation on the returning officer to investigate whether a statutory declaration lodged pursuant to cl 47 was correct, it is difficult to see how the relief sought pursuant to issue 3 could be granted given the responsibilities and procedures required of the returning officer under this legislation. In In Re Wood when the High Court declared the Senate position of Mr Wood vacant it did not do so by declaring that the returning officer's acceptance of his nomination was invalid. It simply declared the senator's position vacant. While the NSWALC has couched its arguments in terms of the Applicant's obligation to do certain things under cl 47(1)(c1) and cl 47(4) of the Regulation, her failure to do so does not in the scheme of the Act result in the actions of the returning officer being invalid. Consequently the nomination provisions in the Act have been complied with. The Applicant accepted that had the incorrect statutory declaration been known in time for an appeal to the court of disputed returns the validity of the Applicant's election could have been challenged. The NSWALC is unsuccessful on issue 3. (ii) disqualification from holding office and election to office 127 The NSWALC argued that the Applicant was not capable of being elected because she was not qualified to hold office under s 132(1). The Act does not state explicitly that it is a requirement for qualification as a candidate for election to the NSWALC that the potential candidate is not disqualified from holding office under s 132 of the Act. If it did, the NSWALC's arguments would be much stronger. That it does not is highlighted by considering the provisions of the Act relating to membership of the board of a local aboriginal land council. Election to the board of a local aboriginal land council in s 63 of the ALR Act provides in ss (2): (2) A person is not qualified to stand and be elected as a Board member of a Local Aboriginal Land Council: (a) unless the person is a voting member of the Council, or (b) if the person is suspended or disqualified from holding office as a Board member or is suspended or disqualified from membership of the Council. 128 Section 66 specifies grounds for disqualification from office and is in very similar terms to s 132. Section 63 is to be contrasted with s 121(4), the only provision in the ALR Act specifying a qualification for election to the NSWALC. That subsection states that a person is not qualified to stand for election, or to be elected, as a councillor representing a region unless they are a voting member in that region. As argued by the Applicant's counsel, s 63(2)(b) makes explicit the link between the requirements for holding office and qualification for election. That provision includes as an essential criterion for eligibility that a person not be disqualified from holding office as a board member. The ALR Act provisions concerning qualification for election as a councillor of the NSWALC do not make that link explicit. Local Government Act 1993 129 As pointed out by the Applicant's submissions other statutory regimes link qualification to hold office with the capacity to be elected in the Act. One example is s 274 of the LG Act which states: 274 What are the qualifications for civic office? A person is qualified to hold civic office if: (a) the person is entitled to be enrolled as an elector, and (b) the person is not disqualified from holding civic office by this Act, and (c) the person is not prevented from being elected to civic office by section 276 (2). Section 275 provides numerous circumstances the occurrence of which results in a person being disqualified from holding civic office. Section 276(1) of the LG Act states that a person who is disqualified from holding civic office cannot be elected to a civic office, inter alia. 130 The link between qualification for election as a candidate and the circumstances giving rise to disqualification is not found within the ALR Act. The fact that the Regulation provides for a statutory declaration to be provided as found in cl 47 does not establish that link despite the clause creating an overlap between Div 3 and Div 4. The Applicant was elected pursuant to s 123 of the Act which is not subject to any other part of the Act. Additional arguments considered 131 There are additional arguments made by the Applicant's counsel based on the specific wording of s 132 and other sections which suggest his position is correct. The Applicant's submissions concerning the clear demarcation in the Act between a person who is qualified to stand for election or be elected under s 121(4) and disqualification from holding office under s 132 are correct. Section 132(1) of the ALR Act is addressed only to holding office and its operation should not be extended beyond that context. 132 I also agree with the Applicant's argument (par 94) based on the text of s 132. It refers to being "disqualified from holding office" suggesting that it refers to the removal of a councillor from office. It is not couched in terms which suggest it is relevant to the election of a councillor and it is located in Div 4, not Div 3. Section 133(e) refers to becoming disqualified and is the section that provides for consequences of a person becoming disqualified from holding office. As submitted by the Applicant that also weighs against the likelihood of s 132(1) applying so that a person cannot be elected and hold office where the Act is otherwise complied with and there is no challenge made to the Court as a court of disputed returns. 133 The Applicant has identified other arguments as to why the NSWALC arguments must fail. Another pertinent argument (par 107) is that the remedies sought by the NSWALC in its cross-claim such as the declaration of invalidity of the Applicant's election requiring a recount of votes and the holding of a new election are not available in these proceedings as the Court is not sitting as a court of disputed returns. As submitted by the Applicant, the Court can exercise the powers of the Parliamentary Electorates and Elections Act when sitting as the court of disputed returns but is not doing so in these proceedings. On the separate question of whether the remedy of the declaration of a casual vacancy is available in these proceedings (the Applicant has submitted that it is not), I will refer to that matter in relation to issue 2. That remedy is not relevant to this part of the case concerning as it does the validity of the Applicant's election. The issue of casual vacancy arises if the Applicant is elected. 134 I should note for completeness that the Applicant's arguments at par 105-106 are further reason why there are difficulties in the Court exercising its primary jurisdiction under s 20 of the Court Act when it is not sitting as a court of disputed returns. I consider nevertheless that s 16(1A) can give rise to the Court's jurisdiction but have to accept that the ability of the Court to provide any remedy may well be limited. (iii) section 132/133(e) apply after elected 135 I do not agree with the Applicant's argument ((iv) at par 99) that only events that occur after the person is a councillor are intended to affect their ability to continue in office. Section 132 does not specify in its terms when the events giving rise to disqualification can occur. Further by way of supporting example, s 132(1)(c) refers to certain convictions being a basis for disqualification from holding office where these are recorded within the last five years. That provision contemplates that convictions recorded before and after a candidate's election to office are relevant to determining whether a person is qualified to hold the office of councillor. These provisions can apply to the Applicant after she was elected. Section 133(e) refers to a vacancy where a candidate becomes disqualified from holding office. That provision can apply the Applicant's circumstance so that when she was elected she had the potential to become disqualified subject to the exercise of the Registrar's determination under s 132(2). 136 I also note that the returning officer's submissions varied from the Applicant's in asserting that s 132 and s 133 apply to the Applicant once elected and that the appropriate mechanism in the circumstances of this case is for an application to be made to the ADT for the declaration of a casual vacancy. At a broad level of generality (divorced from the particular issues concerning jurisdiction of the Court that arise in this matter) I agree with that submission. The Applicant's counsel supported his submission with a number of public policy arguments identified above at par 100-102 concerning the primacy of the election process under the ALR Act. I identify the public policy aspects raised by the parties in more detail below. (iv) public policy considerations 137 The objects and purposes of the ALR Act and the role of the NSWALC are set out in s 3, s 105 and s 106. The Applicant made lengthy submissions on the correct approach to the construction of the Act based on the need to uphold the choice of local aboriginal people to elect their representatives as councillors of the NSWALC. The public policy consideration of upholding the right of Aboriginal people to choose those who represent them as part of the self-determination objectives of the Act was argued to be the guiding policy which supported the Applicant's approach. The returning officer has relied on the public policy objective of achieving certainty in election results to support its arguments. While I have held in favour of the Applicant's and returning officer's approaches to the construction of the Act and Regulation, there are several potentially competing public policy considerations which arise in light of the provisions of the Act given the facts in this case. 138 An extract of the second reading speech delivered when the 2006 amendments to the Act were introduced is set out at par 29. It emphasises a desire on the part of the NSW government to have better decision-making by ensuring councillors do not hold office if convicted of certain offences. The submissions of the returning officer (par 112) also accept that there is a public policy purpose served by requiring candidates for election to swear a statutory declaration that they are not disqualified from holding office under s 132. It is undesirable that a person should stand for election if he or she is liable immediately on election to be disqualified. 139 As submitted by the NSWALC, the matters the subject of the statutory declaration referred to in cl 47 of the Regulation are peculiarly within the knowledge of a deponent. The Applicant's incorrect statutory declaration was sworn on 20 April 2007. Its incorrectness was not publicly known until several months after the 28 days for the court of disputed returns jurisdiction of the Court in s 125(2) had expired (on or about 19 June 2008). The matter came to light as result of a newspaper report on local court proceedings coming to the attention of the NSWALC, that body making a complaint to the Registrar, and the Registrar's subsequent investigation. The Applicant's counsel submitted that because the nomination process for election as a councillor was public any difficulties with a particular candidate would be likely to be exposed before the election because of the public attention directed upon them as a result of their nomination. It was accepted that had the incorrect statutory declaration been known about in time an application to this Court as the court of disputed returns challenging the nomination and election could have been made. The discovery of concerns with a particular candidate, such as whether one of the categories in s 132 applies, within a timeframe enabling an application to the Court as the court of disputed returns, is at best hit and miss. 140 It is not difficult to surmise that the introduction of the requirement in cl 47(1)(c1) of the Regulation to provide a statutory declaration in the terms specified also means that those people voting for persons seeking election would assume that a correct statutory declaration was provided by a candidate seeking election. Accordingly, electors vote in the election of councillors for the NSWALC on the basis that the candidates have satisfied the nomination process which includes the provision of a correct statutory declaration in the terms required by cl 47(1)(c1) so that they are considered not to be disqualified under s 132 of the Act from holding office. The nomination papers are not publicly available (cl 47(3) of the Regulation) but the Regulation is clear about what the statutory declaration is to state. The existence of the statutory declaration means there would be no perception of a need for inquiries to be instigated about a particular candidate, contrary to the thrust of the submissions of the Applicant that such inquiries could easily be made. 141 The public policy intention behind the introduction of cl 47(1)(c1) is more likely to be to place some onus on those seeking election to satisfy themselves that they do not fall under any of the categories in s 132, hence the requirement for a statutory declaration. It is less likely that it is the intention of the legislature that voters undertake their own inquiries as to whether a person is a fit and proper person, including investigation of a candidate's criminal record, rather than relying on the process of nomination. 142 Where there are grounds to believe that the required statutory declaration is false or wilfully misleading, a prosecution can be commenced under cl 83 of the Regulation. This has not taken place in this case to date. What is not explicitly dealt with in the nomination process under the Act and Regulation is what if there was simply a mistake in the swearing of the statutory declaration. Hence the complex arguments in these proceedings. Given that the provisions I am considering are relatively new and untested in a court it may be that consideration has to be given to whether the form of the Act and Regulation does appropriately balance the various policies I have outlined above. 143 In light of the many reasons provided above, I consider that issues 1 and 3 of the cross-claim must fail. I do not therefore consider I can make any of the declarations and consequential orders sought in prayers 1 to 6 of the cross-claim (set out at par 43). B. If the Applicant was elected was she immediately disqualified? Issue 2 of cross-claim 144 A separate issue raised by the NSWALC's cross-claim is that if validly elected the Applicant became disqualified immediately on taking office (issue 2). As a result a declaration is sought that there is a casual vacancy in the office of councillor for the north coast region of NSW (prayer 6A). (i) does the Court have jurisdiction to determine issue 2? 145 A different jurisdictional issue is raised by the Applicant and the returning officer against this Court dealing with issue 2, namely that any action to have the Applicant's position declared vacant should be taken before the ADT, as provided by s 135 of the ALR Act. Different considerations arise in considering whether s 20 applies compared to whether the Court has jurisdiction to determine issues 1 and 3 under that section. This part of the cross-claim raises new issues which are separate from the relief sought by the Applicant. Whether the Court should be sitting as a court of disputed returns does not arise as the validity of the Applicant's election is not in issue. Section 20(2) identifies the civil jurisdiction of the Court to enforce any right, obligation or duty (subsection (a)) and review or command the exercise of a function conferred by an environment or planning law (subsection (b)). But for the provisions in the ALR Act which specify that an application be made to the ADT for an order that a position is vacant, it would appear that the Court could consider such an application under s 20(2)(a) or (b) and make declarations as provided for in subsection (c). Applying the decision of the High Court in Shergold that implied repeal of jurisdiction should not be lightly found I have formed the tentative conclusion that the Court does have jurisdiction under s 20(2) of the Court Act to determine this issue in the NSWALC cross-claim. 146 Does s 16(1A) of the Court Act also apply so that the Court can consider this as a matter ancillary to the Applicant's claim for relief? The same reasoning that I applied above in relation to issues 1 and 3 on the question of jurisdiction at par 88 (whereby I considered that s 16(1A) of the Court Act does enable the Court to determine issues 1 and 3 as matters ancillary to the issues raised by the Applicant's claim) does not arise for issue 2. Issue 2 arises if the Applicant is elected. The Applicant's claim for relief concerns a declaration that she is elected as a councillor. It does not raise an issue of whether, once elected, she is disqualified. There is accordingly no matter before the Court as a result of the Applicant's claim to which this part of the cross-claim can be considered ancillary. (ii) substantive issue 147 Assuming the Court does have jurisdiction to consider issue 2 in these proceedings, I have held above in par 135 that s 132 and s 133(e) apply to the Applicant after her election. In relation to the substantive issues raised by this ground, I must consider whether the coming into existence of circumstances giving rise to a disqualification under s 132(1) results in disqualification being "self-executing" so that a councillor's position is vacant regardless of whether a candidate considers they should be disqualified. The NSWALC argued that the person is automatically disqualified if events identified in s 132(1) have occurred. This resulted in the Applicant vacating office pursuant to s 133(e) so that I should make a declaration that her position is vacant. 148 The Applicant and returning officer argued that the Applicant can only be removed from office under Div 4 concerning removal from office. The returning officer argued this occurred by an application being made to the ADT. The Applicant argued that s 133(e) does not apply because she did not become disqualified after becoming a councillor (contrary to what I have held in par 135). Even if s 133(e) applied the Applicant remains in office until she relinquishes it or an order is made under s 135 in the ADT which takes effect under s 137. Finding 149 Many of the grounds for disqualification in s 132(1) of Div 4 headed Removal from Office raise issues of interpretation and subjective assessment of matters about which minds may well differ. That suggests the grounds cannot be self-executing. For example, whether a person is mentally incapacitated (subsection (1)(d)) may well involve a subjective determination. That militates against a finding that s 132(1) and s 133(c) operate on a "self-executing basis" regardless of the views of the councillor in question. 150 This approach is confirmed by the wording in s 133(e). Section 133(e) states that a position becomes (emphasis added) vacant if a councillor becomes disqualified from holding office. If there is dispute as to whether that has occurred then any person can take proceedings for a declaration that a councillor's position is vacant in the ADT under s 135. Section 137 specifies when an order declaring a vacancy takes effect. Alternatively, if a circumstance under s 132(1) arises where a councillor considers he or she should resign they can do so under s 133(d) so that their position is then vacant. Such action would remove the necessity of applying to the ADT. 151 A further reason why the grounds are unlikely to be "self-executing" is that s 132(2) provides that the Registrar can consider whether an offence committed by a person which comes within s 132(1) should be ignored for the purposes of the section. There would be no opportunity for him to consider such an application if the convictions referred to in s 132(1)(a)-(c) had the immediate effect of causing a councillor's office to be vacated. Assuming therefore that the Court does have jurisdiction to determine the matter, I do not consider the Applicant became automatically disqualified from holding office as soon as she was elected. 152 The provisions of s 132 and 133(e) do apply to the Applicant's situation as an elected councillor. Accordingly, it is necessary to consider the Applicant's challenge to the determination of the Registrar under s 132(2) not to ignore the Applicant's driving offence for the purposes of s 132(1). The Applicant has admitted that she was disqualified from holding office because of the 2003 driving conviction. That disqualification under s 132(1), if not ignored by virtue of a favourable determination by the Registrar under s 132(2), means that s 133(e) operates so that a vacancy of her position could occur as a result, for example, of proceedings taken in the ADT (unless such a matter can be determined by this Court in these proceedings). 153 While I have determined the issue of jurisdiction in this part of the judgment tentatively in the NSWALC's favour, I have determined the substantive issue against the NSWALC so that the Applicant was not immediately disqualified from holding office after her election in May 2008. The Applicant accepts that she was disqualified from holding office until 11 March 2008 given that the Registrar determined not to ignore her 2003 driving conviction under s 132(2). She has commenced these judicial review proceedings seeking to challenge his determination so that whether she is disqualified hinges in part on whether that challenge is successful. The issue arises of what order, if any, the Court should make if the Applicant's challenge to the Registrar's determination is unsuccessful. I therefore refer again, without reaching a conclusion in this judgment, to the issue of the Court's jurisdiction to make any order concerning a declaration of casual vacancy at the end of my findings on whether the Registrar's determination was lawfully made (par 261 below), as I determine that it was. Applicant's Claim against the Registrar 154 The Applicant applied to the Registrar on 10 March 2008 under s 132(2) of the ALR Act for a determination that the 2003 driving conviction should be ignored for the purposes of s 132(1) of the Act. The Registrar notified the Applicant of this decision not to ignore the offence under s 132(2) on 19 May 2008. His determination is challenged on various administrative law grounds and the Applicant seeks an order that the decision is invalid and should be set aside and also that the decision should be redetermined. The Registrar argues that his decision is valid. 155 The objects and purposes of the ALR Act and the role of the NSWALC are set out in s 3, s 105 and s 106. In terms of the statutory scheme pertaining to the Registrar, the Registrar is appointed under s 164 of the ALR Act. The main functions of the Registrar are identified in s 165. Grounds of review in relation to Registrar's decision 156 The grounds of review contended for by the Applicant are as follows: (i) failure to give real and genuine consideration to relevant matters (cl 30 (a), (b), (c), (e), (f ), cl 33(a) of APOC) (ii) taking into account irrelevant matters (cl 31 (a), (b), (c), cl 33 of APOC) (iii) the decision was manifestly unreasonable (cl 34 of APOC) (iv) the Applicant was subject to a denial of procedural fairness (cl 35 of APOC) 157 The APOC identify the circumstances of the claim exhaustively as follows: … 21A. On 17 January 2008, NSWALC asked the Registrar to consider Ms Laurie's conviction for unlicensed driving ("the Unlicensed Driving Offence") and related circumstances for the Registrar's advice in terms of possible breaches of the ALR Act and appropriate action and, inter alia, to brief NSWALC ("the Complaint"), which included a newspaper article in which the Chief Executive Officer of NSWALC was reported as stating NSWALC takes these matters very seriously and would be conducting inquiries. 21B. On 25 January 2008, NSWALC sent the Registrar material in which: (a) the Chief Executive Officer stated NSWALC needs to be considering what action to take and to be seen as taking action; (b) stated that Ms Laurie's actions seem to have already affected NSWALC's reputation by reason of the newspaper article; (c) stated consideration was being given to moving a censure motion against Ms Laurie for misbehaviour; (d) stated that NSWALC may consider requesting the Registrar to initiate action including, inter alia, suspending Ms Laurie or referring her matter to the Pecuniary Interest and Disciplinary Tribunal, (e) stated that the fact sheets tendered in court suggested Ms Laurie was convicted of the offence of driving whilst disqualified on 11 March 2003; (f) if so, she was not properly elected and her office is and remains vacant; (g) if so to E), it may mean a statement and a statutory declaration she was required to make under s47(1) of the Aboriginal Land Rights Regulation 2002 were false, which would constitute an offence; (h) if well founded E)-G) above is a serious matter affecting the integrity and probity of NSWALC and the Aboriginal Land Council network as a whole; (i) there is real potential for seriously damaging publicity to result if this were to come to light; (j) NSWALC was considering pursuing investigation of this matter by relevant authorities including the NSW Police and/or the Independent Commission Against Corruption and to seek a declaration pursuant to s135 of the ALR Act that Ms Laurie's position is vacant; (k) NSWALC would ask for Ms Laurie's resignation if she had committed the Driving Offence; and (l) NSWALC considered this serious matter that cannot be ignored. 21C. On 29 January 2008, the Registrar wrote to NSWALC and said he needed to make further inquiries before he was in a position to finally determine whether Ms Laurie has been disqualified from holding a position as NSWALC councillor and would contact NSWALC if he required further information or upon the conclusion of his enquiries and determination of the Complaint; 21D. On 18 February 2008, the Registrar copied to NSWALC a letter to Ms Laurie dated 15 February 2008 stating the letter arose from the Complaint and was provided for information. In the letter to Ms Laurie, the Registrar said: (a) he proposed to investigate the matter to determine whether or not convictions within s132(1)(c) exist and if so what steps should be taken; (b) he would bring an application to the Administrative Decisions Tribunal ("ADT") seeking an order that her position as NSWALC councillor be declared vacant if she failed to respond to the letter or indicated she had a relevant conviction and she did not ask him to ignore the offence; (c) if he exercises his discretion to ignore the offence it will not be necessary for him to commence proceedings in the ADT but if he determined not to exercise his discretion to ignore the conviction it may still be necessary. 22. On 10 March 2008, Ms Laurie requested the Registrar to determine that the Driving Offence should be ignored for the purposes of s132 of the ALR Act because of the time which had elapsed since the act giving rise to it had occurred and/or because of the triviality of the act. 23. In the request the following facts were provided to the Registrar on Ms Laurie's behalf: (a) the act giving rise to the Driving Offence occurred on 14 September 2002; (b) Ms Laurie was not a councillor at the time she committed the Driving Offence; (c) Ms Laurie's car had been taken without her permission from her home at 6 Robinson Street, Ngaru Village, Pippi Beach by some young men and taken to Wattle Drive, Crystal Waters west of Yamba about 3km away; (d) Ms Laurie wanted to retrieve her property because she apprehended it was at risk of damage if left where it was; (e) Ms Laurie wanted to maintain the car in driveable condition as her period of disqualification was to end approximately 4 months later on 15 January 2003; (f) Ms Laurie had driven approximately 500m from Crystal Waters towards her home when she was pulled over by the Police; (g) Ms Laurie pleaded guilty when the matter first came before Maclean Local Court on 12 November 2002; (h) Ms Laurie's conviction for the Driving Offence was recorded on 11 March 2003; and (i) the Court imposed a penalty of a $500 fine, $60 court costs and disqualification from driving for 2 years in respect of the Driving Offence. 24. On 25 March 2008, the Registrar wrote to Ms Laurie. The letter contained the following: (a) a reference to the subject matter of the letter being the Complaint; (b) a statement in considering the time elapsed he must have regard to the circumstances surrounding the effluxion of time; (c) a statement that, in the absence of further information, the time which had elapsed since Ms Laurie nominated as a candidate for the NSWALC elections does not appear to be capable of being taken into account as a matter in Ms Laurie's favour; and (d) a request that Ms Laurie make further submissions in respect of the circumstances related to the non-disclosure of the Driving Offence by Ms Laurie when she nominated for election as councillor. 25. On 13 April 2008, further submissions were made on behalf of Ms Laurie which contained the following facts and submissions: (a) the circumstances surrounding the effluxion of time were irrelevant; (b) the existence of the Driving Offence was a matter of public record; (c) although the information sought by the Registrar was irrelevant to his determination under s132(2) of the Act it may be relevant to his investigations such as the complaint or other functions he has under the Act and therefore further information would be provided; (d) Ms Laurie thought her conviction for the Driving Offence was recorded more than 5 years before she nominated for the NSWALC election in April 2007; (e) even if Ms Laurie had not thought the matter pleaded in (d) above, she would not have thought it disqualified her from holding office as councillor because she was not aware she could be disqualified for traffic offences and she thought she actually had to be sent to gaol before she would be disqualified; and (f) Ms Laurie did not have the benefit of legal advice before nominating for the election and there was nothing in the material provided by the Electoral Commissioner which provided advice or information about the meaning of the prescribed statutory declaration which was amongst that material. 26. On 19 May 2008, in a letter to Ms Laurie which referred to the "complaint", the Registrar determined not to ignore the Driving Offence for the purposes of s132 of the ALR Act ("the Decision") and threatened to make an application to the Administrative Decisions Tribunal to have her position declared vacant pursuant to s135(1) if Ms Laurie did not resign within 14 days. 26A. On 11 June 2008, the Principal Legal Officer at NSWALC ("Ms D'Souza") called the Registrar and said NSWALC had not received his letter and the Chief Executive Officer had not heard anything. 26B. On 17 June 2008, the Registrar sent an email to NSWALC enclosing a letter … in which he stated: (a) he determined to conduct an investigation as a result of the Complaint; (b) the conviction brought to his attention in the Complaint does not have the effect of disqualifying Ms Laurie; (c) the information in the Complaint and further investigation disclosed the Driving Offence; (d) the effect of the Driving Offence is that Ms Laurie was disqualified from holding office as a NSWALC councillor at the date of her election; (e) on 19 May 2008, he determined to decline to exercise his discretion to ignore the Driving Offence; (f) Ms Laurie's position was vacated by her disqualification but she has remained in office, which is a breach of the ALR Act. 26C. On 17 June 2008, there was an exchange of emails between the Registrar and Ms D'Souza in which Ms D'Souza asked the registrar to confirm if he was proposing to take any further action regarding Ms Laurie's position and he replied that he was not. 26D. On 17 June 2008, in response to an inquiry from Ms D'Souza in which she stated that Mr Scott would be briefing the Minister for Aboriginal Affairs the next morning, the Registrar informed Ms D'Souza that he had briefed Nicole Campbell (who worked in the office of the Minister for Aboriginal Affairs) stating: (a) late on 13 June 2008 he received senior counsel's advice that he was not required to take action against Ms Laurie in the ADT; (b) his position is that Ms Laurie is disqualified from holding office as councillor because of the Driving Offence, has been since her election and her continuing participation as a member of NSWALC is a breach of the ALRA; (c) he would discuss providing NSWALC with a copy of his legal advice with his legal adviser. 26E. The Registrar's 17 June 2008 letter to NSWALC enclosed a letter from Maclean Local Court dated 27 March 2008 to the Registrar which he received on 2 April 2008. The letter from Maclean Local Court to the Registrar enclosed, inter alia, a fact sheet tendered to that court in respect of the Driving Offence which stated that on 15 January 2002 Ms Laurie had been disqualified from driving for 1 year due to the offence of driving after licence cancelled. 27. Subsequently, the Registrar provided reasons for the Decision in a document dated 7 July 2008 addressed to Ms Laurie's solicitors ("the Reasons"). 28. The Reasons contained the following findings and statements in respect to triviality: (a) the account in the 10 March 2008 submissions of the factual circumstances giving rise to the Driving Offence was accurate; (b) Ms Laurie drove her vehicle knowing that she was disqualified from driving and that she was not compelled to do so; (c) the act giving rise to the Driving Offence was serious because Parliament regarded it as a serious traffic offence by reference to the second reading speech on 24 June 1998 to the Road Transport (Penalties and Disqualifications) Bill [sic – Traffic Amendment (Penalties and Disqualifications) Bill 1998] ; (d) Ms Laurie could only have been disqualified from driving for 2 years if the Driving Offence was a second or subsequent offence of driving whilst disqualified; (e) the Driving Offence was a second or subsequent offence by Ms Laurie for driving whilst disqualified; (f) the Driving Offence would not have disqualified Ms Laurie from holding office as a councillor on the NSWALC prior to the commencement of the relevant provisions of the Aboriginal Land Rights Amendment Act 2006 on 7 February 2007 and therefore the relevant provision in the ALR Act was expanded to include offences such as the Driving Offence; (g) the act giving rise to the Driving Offence is a serious traffic offence; (h) the act giving rise to the Driving Offence discloses a disregard for the legislative or judicial prohibition against Ms Laurie doing the act; (i) the act giving rise to the Driving Offence is inconsistent with the role of councillor, in particular, the requirement to direct and control the affairs of the NSWALC in accordance with the ALR Act; (j) the NSWALC is a statutory corporation having substantial legislative obligations and responsibilities. 29. The Reasons contained the following findings and statements in respect to time: (a) the Registrar must consider the time elapsed in the context of the Driving Offence, which he had already found is a serious traffic offence and should not be ignored by reason of its triviality; (b) the period of time which had elapsed since the Driving Offence for the purpose of s132(2) of the ALR Act was 4 years, 8 months and 5 days being from 14 September 2002 to 19 May 2007 ("the Period"); (c) in swearing a statutory declaration required by s47 of the Aboriginal Land Rights Regulation 2002, Ms Laurie turned her mind to whether she was disqualified from holding office as a councillor by reason of the Driving Offence but made no enquiries to determine the actual date of her conviction; (d) Ms Laurie was the only relevant person in possession of knowledge of her conviction for the Driving Offence but she did not make that information available to the returning officer for the election; and (e) the Registrar disregarded the time that had lapsed between the NSWALC election on 19 May 2007 and 10 March 2008 when Ms Laurie requested the Registrar to determine the Driving Offence be ignored for the purposes of s132 of the ALR Act. 158 There is no dispute that the Court has jurisdiction to judicially review the Registrar's decision. He was exercising a function under s 132(2) of the Act, which Act is an environmental or planning law under s 20(3)(a) of the Court Act. The proceedings seek a review of that function and therefore fall within s 20(1)(c) and s 20(2) of the Court Act. Registrar's defence 159 The Registrar in the Further Amended Points of Defence admits the events contained in the APOC cl 21A-21D and cl 22. The Registrar admits cl 23 but states that further relevant facts were provided to the Registrar by the Applicant in addition to those listed in cl 23. Those additional facts were a copy of the bench papers from the Maclean Local Court relating to the Applicant's 2003 driving conviction and a statement that the conviction carried a maximum penalty of 30 penalty units or 18 months imprisonment, or both. The Registrar admits cl 24 in respect of the contents of the letter dated 25 March 2008 sent to the Applicant. The Registrar admits cl 25 but states that the letter sent by the Applicant to the Registrar contained other facts, assertions and submissions, namely that the Applicant was not responsible for the delay in the discovery of the relevant conviction but was instead the source of the information provided to the Registrar, that she had expended money in obtaining the information, and that the bench papers from the Applicant's earlier conviction could have been obtained in the same manner as bench papers the Registrar received from the NSWALC concerning an appearance by the Applicant on 15 January 2008. Paragraphs 26, 26A-E, 27 and 28 are all admitted. The Registrar admits cl 29 but adds that a further reason was given by the Registrar, being that regard was given to the time that had passed and the seriousness of the offence in declining to exercise his discretion to ignore the offence by reason of time passed. Evidence 160 There is no dispute between the parties about the documents referred to in the evidence. The Applicant relied on her affidavit sworn 24 June 2008. Paragraphs 11-22 set out correspondence with the Registrar concerning her application that her driving offence be ignored for the purposes of s 132 of the ALR Act and correspondence with representatives of the NSWALC concerning her position. The Applicant's affidavit annexed three documents relating to the Registrar's decision additional to those contained in the agreed bundle of documents. These were a letter from the Applicant's solicitors to the Registrar dated 30 May 2008 alleging insufficient reasons were provided for the refusal to exercise discretion pursuant to s 132. In response, an email was sent on 17 June 2008 by the Registrar, in anticipation of a letter being received by the Applicant the following day, claiming that sufficient reasons had been provided and the Registrar's belief that it was unnecessary for him to take action in the ADT to declare the position of councillor vacant. A further letter was sent to the Registrar from the Applicant's solicitors dated 20 June 2008 requesting details of the relationship between the Registrar and Mr Scott, CEO of the NSWALC and responding to the Registrar's view that an application to the ADT was unnecessary. 161 A brief chronology of documents based on an agreed bundle of documents provided by the parties, the additional documents attached to the Applicant's affidavit and mirroring largely the documents referred to in the APOC at cl 21A-29 (par 157) follows: (i) 17 January 2008: Email from Geoff Scott, CEO of the NSWALC to the Registrar, two police fact sheets and local newspaper report attached relating to the Applicant's conviction on 15 January 2008 for driving without a licence on two occasions. The fact sheet noted that the Applicant had a prior "drive whilst disqualified" offence recorded. (ii) 25 January 2008: Further letter from Mr Scott stating his concerns about the matter and action being considered by the NSWALC. Also states that the fact sheets sent in previous letter disclosed the Applicant had been convicted of the offence of driving whilst disqualified on 11 March 2003 (iii) 29 January 2008: Letter from the Registrar to Mr Scott responding to Mr Scott's complaint of 17 January 2008. States that he plans to make further inquiries into the matter as the documents attached by Mr Scott suggest other offences may have been committed in the relevant five year period. (iv) 29 January 2008: Letter from the Registrar to the Applicant advising the Applicant of the complaint by Mr Scott based upon the police fact sheets and the newspaper report. The Registrar seeks consent from the Applicant to examine her criminal and traffic records. (v) 15 February 2008: Letter from the Registrar to the Applicant proposing to investigate the matter and requesting the Applicant provide a statutory declaration regarding her criminal history as well as express whether or not she wishes the Registrar to exercise discretion to ignore any offence. A copy of this letter was sent to Mr Scott on 18 February 2008. (vi) 10 March 2008: Submissions sent by counsel for the Applicant to the Registrar via email regarding exercise of the Registrar's discretion. Maclean Local Court bench papers in respect of the 2003 driving conviction attached. (vii) 25 March 2008: Letter from the Registrar to the Applicant inviting further submissions. (viii) 13 April 2008: Email from the Applicant's counsel to the Registrar attaching supplementary submissions. (ix) 19 May 2008: Email from the Registrar to the Applicant notifying of decision not to exercise discretion in the Applicant's favour. (x) 30 May 2008: Letter from the Applicant's solicitors to the Registrar alleging insufficient reasons provided for the refusal to exercise discretion. (xi) 17 June 2008: Letter from the Registrar to Mr Scott notifying of the decision not to exercise discretion in the Applicant's favour. Notes that police fact sheets sent by Mr Scott on 17 January 2008 disclosed a previous conviction for the offence of driving whilst disqualified and that further inquiries were made. Maclean Local Court bench papers in respect of the 2003 driving conviction attached, which documents were received by the Registrar from the Maclean Local Court on 2 April 2008. (xii) 17 June 2008: Email from the Registrar to the NSWALC confirming the Registrar's belief that he does not need to take any further action. (xiii) 18 June 2008: Letter from the Registrar to the Applicant's solicitors declining to provide further reasons for the decision not to exercise his discretion. An email in anticipation of this letter was sent on 17 June 2008 to the Applicant's counsel. (xiv) 20 June 2008: Letter from the Applicant's solicitors to the Registrar requesting further reasons and rasing issues about automatic disqualification. (xv) 7 July 2008: Letter from the Registrar to the Applicant's solicitors providing further reasons for decision. This letter, and another letter sent 7 July 2008 setting out documents available for the Applicant to inspect, did not reach the Applicant and were resent with an accompanying letter dated 17 July 2008 which was tendered in these proceedings. Applicant's case - overview 162 Before considering the individual grounds of judicial review, the Applicant made submissions concerning the subject matter and purpose of the ALR Act as this was argued to be necessary to define the function of the Registrar in considering matters under s 132(2). The mechanism in s 132(2) provides a means for a person to avoid being disqualified from holding office as a councillor despite being convicted of an offence to which s 132(1)(a) – (c) applies. The objects of the ALR Act are found in s 3 and include the improvement of the spiritual, social, cultural and economic circumstances of the Aboriginal people through land rights. The vehicle for land rights is representative aboriginal land councils constituted under the ALR Act at the local level (local aboriginal land councils) and state level (NSWALC). Local aboriginal land councils are controlled by an elected Board. Nine councillors are elected to the NSWALC by adult Aboriginal persons on a local aboriginal land council roll. The purpose is to have ultimate control in a collective sense vested in those people for whom the ALR Act was enacted. That purpose is relevant to the Registrar's function under s 132(2). While the clear purpose of s 132(1) is to disqualify people from being councillors if unfit it also has the consequence of defeating the verdict of the electors at an election. Section 132(2) provides a mechanism whereby in some situations the verdict of the electors can be preserved. 163 The objects of the NSWALC are set out in s 105. The functions in s 106 are identified as, inter alia, land acquisition, oversight of local aboriginal land councils, provision of advice and policy to the Minister on aboriginal land rights, the administration of the NSWALC Account and Mining Royalties Account, the exercise of native title functions, the taking of action to protect the culture and heritage of Aboriginal people in NSW and engagement in financial stewardship. The councillor's role on the NSWALC is to vote where necessary on these matters, as a bare minimum. 164 The financial stewardship responsibilities are particularly important in the context of s 132(2). Section 132(1) considers situations which directly impact on the fitness and ability of a person to perform the functions of a councillor. In addition to the criminal offence provisions the grounds for disqualification include being mentally incapacitated (s 132(d)), being an employee of or consultant to the NSWALC (s 132(h)), refusing to undergo training (s 132(k)), or being or becoming bankrupt (s 132(3)). The disqualifying offences in subsections (a) – (c) are broadly defined and a conviction would not necessarily impact on a person's ability to perform the role of a councillor. 165 These submissions are reflected in the APOC. Clause 33 states: In making the decision, the Registrar erred in law by misconstruing s 132(2) of the ALR Act in the following respects: (a) he failed to appreciate that the text of s 132(2) requires him to consider Ms Laurie's act of driving and not the Driving Offence; (b) he failed to appreciate that the text of s 132(2) of the ALR Act calls for analysis of the relative triviality of Ms Laurie's act of driving and not the question of whether the act was serious or trivial in an absolute sense; (c) he failed to appreciate that the text of s 132(2) of the ALR Act requires him to consider all of the time which has passed between the offence and his determination under the section; (d) he failed to appreciate that the context of s 132(2) of the ALR Act requires that the relative triviality of Ms Laurie's act of driving is to be measured against the range of acts or omissions which may give rise to a conviction for an offence referred to in s 132(1)(a) – (c) of the ALR Act and not by reference to the concept of triviality generally or by reference to Road Transport legislation; (e) he failed to appreciate that the context of s 132(2) of the ALR Act was that under s 132(1)(a) – (c) a person may be disqualified from holding office because of acts or omissions which have little or no bearing on their ability to perform the acts required of a councillor on the NSWALC; (f) he failed to appreciate that the context of s 132(2) of the ALR Act requires that the relative triviality of Ms Laurie's act of driving is to be assessed qualitatively by comparison with the acts she is required to perform as councillor on the NSWALC; … (i) he failed to appreciate that the text and context of s 132(2) and the purpose of the ALR Act required him in determining whether the Driving Offence should be ignored to apply s 132(2) in accordance with the mischief to which it is directed, being to enable persons who would otherwise be disqualified from holding office as councillor on the NSWALC to hold that office where their acts or omissions have little or no bearing on their ability to discharge the functions of councillor because of the relative triviality of those acts and/or the time which has passed since the offence. 166 As explained by the Applicant, the various grounds in APOC cl 33 overlap with the three grounds of challenge identified in APOC cl 30 (failure to consider relevant considerations), APOC cl 31 (consideration of irrelevant matters) and APOC cl 34 (manifestly unreasonable). Subsections 33(a), (b) and (d) assert failures in relation to the Registrar's consideration of the driving offence. Subsection (c) asserts a failure to appreciate that under s 132(2) of the ALR Act he had to consider all the time which had passed between the offence and his determination of 19 May 2008. Subsections (e), (f) and (i) assert a failure to appreciate that the context for s 132(2) is to consider whether a person should be disqualified from holding office because of acts or omissions which have little of no bearing on their ability to perform the acts required of a councillor on the NSWALC. The conviction should be assessed by comparison with the acts the Applicant is required to perform as a councillor. The issues raised in APOC cl 33 will be considered under the various grounds of review set out in APOC cl 30, 31 and 34. (a) failure to take into account relevant matters 167 The detailed grounds in the APOC state at cl 30: In determining that the Driving Offence should not be ignored for the purposes of s 132 of the ALR Act, the Registrar erred in law by failing to give real and genuine consideration to the following relevant considerations: (a) the triviality of the act of driving which gave rise to the Driving Offence including the reason for it, the distance Ms Laurie intended to drive and the distance Ms Laurie did drive (as opposed to the fact of the act of driving at all and the intention to do so); (b) the range of acts or omissions which could give rise to the Driving Offence and offences which fall within s 132(1)(a) – (c) of the ALR Act; (c) the acts which a councillor is required to perform to discharge her functions under the ALR Act; … (e) the time which elapsed between 19 May 2007 and 19 May 2008; and/or (f) the extent to which Ms Laurie's act which gave rise to the Driving Offence at the time she did the act affected her ability to perform the acts required of a councillor at the time the Registrar made the Decision. Applicant's submissions 168 In addition to addressing the time that has passed since an offence was committed, s 132(2) specifies that the triviality of the act giving rise to the offence must be considered. 169 In relation to APOC cl 30(a)-(c), the Applicant submitted that the Registrar failed to consider the reason for the Applicant driving her car. The offence was not committed dishonestly or without regard for property but was rather committed for the purpose of recovering property. These facts were not considered in the context of her ability to discharge the functions of a councillor five and a half years later. It is not sufficient to recite in reasons given that facts are accepted without saying how they are accepted; Allen Allen & Hemsley v Australian Securities Commission (1992) 27 ALD 296. 170 In relation to the reasons dated 7 July 2008, while the Registrar mentioned the submissions received from the Applicant he does not identify what was in the submissions, see Allen Allen & Hemsley v Australian Securities Commission in which Ryan J of the Federal Court held at 304 that reasons had to do more than list matters taken into account but also state what was done in relation to them by the decision-maker. 171 In relation to APOC cl 30(e), which addresses the time that has passed since the offence was committed, the Registrar refused to take into account the time between 19 May 2007 (the date of the Applicant's election) and 19 May 2008 (the date of the Registrar's decision). This was a failure to consider a matter specified in s 132(2). I note that the Registrar has conceded that he failed to do so, and his submissions in this regard are at par 178 (below). 172 In relation to APOC cl 30(f), the Registrar failed to take into account that the Applicant was not a councillor when she committed the driving offence and more than five and a half years have passed since she committed it. 173 The detailed submissions of the Applicant made in relation to the scheme of the Act and the relevance of this to the Registrar's determination under s 132(2) are identified above at par 162-165 in relation to the APOC cl 33 as also reflected in cl 30(3)(c) and (f). Registrar's submissions 174 The Registrar denied that he failed to give real and genuine consideration to relevant matters in the Further Amended Points of Defence. He took into account the submissions of the Applicant dated 10 March 2008, that the act was a deliberate act of driving and that the Applicant was not compelled to drive her motor vehicle, the provisions of the ALR setting out the role of councillors and the extent to which the Applicant's act affected her ability to perform the acts required of a councillor at the time the Registrar made the decision. (i) triviality of offence 175 In relation to APOC cl 30(a), failing to consider the triviality of the act of driving, the Registrar did give adequate consideration to that matter. In the letter dated 7 July 2008 at par (a), (b) and (c (Tab 29 p 1) the Registrar stated that he took into account the submission of the Applicant dated 10 March 2008 and accepted the factual circumstances set out as accurate. He found at (b) that the Applicant drove her vehicle knowing she was a person who was disqualified from driving and that she was not compelled to do so. Those paragraphs make clear that the Registrar did take into account the act of driving giving rise to the offence. 176 In relation to APOC cl 30(b), failure to consider the range of acts giving rise to the driving offence and offences within s 132(1)(a) to (c) to the effect that the range of offences is broad and the driving offences are at the lower end of seriousness, the letter of 7 July 2008 at (c) and (d) does provide context for the nature of the offences as the Registrar concluded the act of driving was deliberate as she knew she was disqualified and that Parliament treats the offence as serious. The net provided under s 132(1)(c) is broad and includes convictions for offences committed anywhere in the world which would be punishable in NSW by 12 months imprisonment or more. 177 In relation to APOC cl 30(c), failure to consider the acts a councillor is required to perform under the ALR Act, in the letter of 7 July 2008 par (f) sets out the section of the ALR Act dealing with the functions of councillors and the provision. At par (k) it states the act giving rise to the driving offence, driving whilst disqualified, is a serious traffic offence as it discloses a disregard for the prohibition on doing the act in question, that is, driving a motor vehicle. He found that it is inconsistent with the role of a councillor. (ii) time since offence 178 In relation to APOC cl 30(e) the Registrar admitted in the Further Amended Points of Defence that he was required to take into account the time elapsed between 19 May 2007 and 19 May 2008. This failure did not materially affect the decision such that the decision should be vitiated. 179 In a letter dated 7 July 2008 to the Applicant's solicitors in which the Registrar provided reasons he stated that: It is necessary for me to determine the period of time which has passed since the offence and for the purpose of s 132(2) of the ALRA I find that the relevant period is 14 September 2002 (the date on which the offence was committed) to 19 May 2007 (the date of the NSWALC election), or four years, eight months and 5 days. 180 The Registrar submitted that the additional 12 months from 19 May 2007 to 19 May 2008 was not significant in these circumstances. The reasons in the letter of 7 July 2008 disclose that the decision to disregard the time was in fact a decision not to attach weight to that additional time. It was not considered as a positive factor in favour of the Applicant. It was equally open to the Registrar to regard the time elapsed as a negative factor in light of her non-disclosure of the driving offence. The Registrar wrote to the Applicant in March 2008 inviting her to make further representations regarding his consideration of the time elapsed. It was open to the Registrar to give such weight to the relevant factors as he determined appropriate. The matters in the letter dated 7 July 2008 at par (m)-(s) were open to his consideration. 181 There was earlier relevant correspondence concerning the time which has elapsed. Following the Applicant's submission dated 10 March 2008 the Registrar wrote to the Applicant on 25 March 2008 and stated that he is required to consider the circumstances surrounding the effluxion of time and invited further submissions. The Applicant responded (tab 50) on 13 April 2008 that she thought her driving conviction was more than five years earlier. In any event if less than five years she would not have considered that it disqualified her from being a councillor of the NSWALC as she was not aware she could be disqualified for traffic offences. This information was considered by the Registrar in his letter of 7 July 2008. 182 In relation to APOC cl 30(f), the extent to which the driving offence affected her ability to undertake her duties as a councillor, this was considered by the Registrar at par (k) of the letter dated 7 July 2008. He also stated at cl 12 of the Further Amended Points of Defence that he took those matters into account, and he accepted that he should. Finding on taking into account relevant matters 183 The Applicant has commenced these judicial review proceedings seeking review of the Registrar's determination under s 132(2) of the ALR Act on numerous grounds. The limited scope of a court's role in proceedings of this type has been emphasised in many cases. The Court is considering whether the decision-maker has determined a matter properly in accordance with the law and cannot determine the merits of the decision under review (see Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 42). Further, the Applicant's arguments focus on the reasoning of the Registrar as disclosed through the written reasons provided, particularly those in the letter of 7 July 2008 from the Registrar to the Applicant's solicitors. The Registrar is not required to provide reasons under the ALR Act but did so at the request of the Applicant's counsel. There are numerous cases which have stressed that reasons provided by administrative decision-makers should not be read with "an eye keenly attuned to the perception of error"; Neaves, French and Cooper JJ at [37] in Collector of Customs v Pozzolanic Enterprises Pty Limited (1993) 48 FCR 280 approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) and referred to in Aronson M et al, Judicial Review of Administrative Action, 4th Edition Lawbook Co, Sydney 2009 at p 286. 184 In determining whether there has been a failure to take into account a relevant matter, the Applicant bears the onus of proving on the balance of probabilities that the factors alleged are required to be taken into account. Specific matters may be referred to in a statute which a decision-maker must consider. In s 132(2) two specific matters are required to be considered by the Registrar in determining whether to ignore an offence for the purposes of s 132(1)(a)-(c). Firstly, the time which has passed since the offence was committed and, secondly, the triviality of the acts or omissions giving rise to the offence. The Registrar did not dispute that he must take into account these matters in making his determination. 185 If not taken into account the Applicant bears a further onus of establishing that such a failure was material to the decision such that the decision is vitiated. The seminal judgment of Mason J in Peko-Wallsend 162 CLR 24 states at 40: Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision …A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision. (i) time since offence 186 In relation to the time that has passed since the offence (APOC cl 30(e), 33(c)), the Registrar's reasons dated 7 July 2008 record his decision that the time he considered should be taken into account was 14 September 2002 (offence date) to 19 May 2007 (the date of the election). The Registrar did not take into account one year of the time since the offence at the date of his decision on 19 May 2008. In these proceedings he admitted that he was required to take that period into account but submitted that the failure does not give rise to any invalidity as it was not a material failure. The Registrar did take into account most of the period since the date of the offence so that the extent of the failure to consider a relevant factor is a partial failure to consider the relevant factor to the full extent necessary. When the whole of the Registrar's reasons are considered these show that the Registrar undertook a comprehensive review of the matters before him in arriving at his decision. Given that he did take into account most, albeit not all, of the period since the offence, the failure to take into account the extra year was not material. 187 There is an assumption in the Applicant's submission that had the one year period of time been taken into account this would have been applied in favour of the Applicant, so that it was less likely that the Registrar's determination would be adverse to her. As submitted by the Registrar, the length of time since the offence could also apply adversely to the Applicant's circumstances in the event of lengthy delay in notifying of the offence. (ii) triviality of the act giving rise to offence 188 In relation to the triviality of the act giving rise to the offence (APOC cl 30(a) and cl 33(a),(b),(d) and (e)) the Applicant's submissions are that the Registrar has failed to take this into account because he considered the seriousness of the driving offence rather than the act giving rise to the offence, which was an irrelevant consideration. In this part of the submissions there is overlap between the relevant and irrelevant considerations grounds of the challenge. The Registrar stated that he did take into account the triviality of the offence as stated in his reasons dated 7 July 2008 in which he accepted as factually accurate the Applicant's submissions through her counsel as to the circumstances giving rise to the offence. By accepting this account he argued that he did do as the section required. 189 The Applicant in her submissions relied on Allen Allen & Hemsley v Australian Securities Commission, a decision of a single judge of the Federal Court, to argue that the reasons were not sufficient. The reasons of an administrative decision-maker should not be subject to a level of scrutiny which may apply to the reasons of a judge or tribunal member. The importance of not being too eager to find mistakes is identified in par 183. Further the reasons should be read as a whole. In the context of the Registrar's reasons in the letter of 7 July 2008 there was no failure on his part in stating that he accepted the Applicant's version of the act giving rise to the offence. His subsequent reasoning demonstrates that he was cognisant of what information she had provided through her legal representative. I consider that is sufficient in these circumstances. (iii) matters not specified in s 132(2) 190 The grounds of review also refer to matters that are not stated explicitly in the ALR Act as matters that must be taken into account (APOC cl 30(b), (c), (f)) and these grounds are supported by the argument based on a "failure to appreciate" the statutory context of s 132(2) within the ALR Act as identified in several paragraphs in APOC cl 33. These arguments are based in turn on the Applicant's submissions on the scope and question of the ALR Act in relation to the role of councillors on the NSWALC, par 162-164. The Applicant's counsel has identified the "failure to appreciate" in five ways set out in APOC cl 33 (a), (b), (d), (e), (f). The essential argument is that the triviality of the driving offence has to be considered in the context of the responsibilities of a councillor so that the relative triviality of an offence has to be considered by comparison with the acts she is required to perform as a councillor. This requires the Registrar to consider the range of offences which can fall within s 132(1)(c) in order to provide the necessary context for his consideration of the triviality of the offence under consideration. This required him to determine whether the driving offence should be ignored in the context of enabling persons who would otherwise be disqualified from holding office as a councillor where the offence concerned has little or no bearing on their ability to discharge their functions as a councillor. In oral submissions the Applicant's counsel argued that the relevant inquiry that had to be made was whether the person is fit to hold the office of councillor (TS 26/8/28 p 18). The statute does not expressly state that these matters must be considered by the Registrar but the Applicant relied on Peko-Wallsend to argue that is the reason why the power was given to the Registrar under s 132(2). The Applicant also submitted there is support for this approach in Yanner v Minister for Aboriginal and Torres Strait Islander Affairs (2001) 108 FCR 543 per Sackville J at 560. 191 I note that Sackville J was in the minority in Yanner. The majority (Kiefel and Drummond JJ) held that the Federal Court was not able to apply an inferred "fitness for office" test in the absence of express statutory provisions providing appropriate criteria to do so. It was not appropriate for the court to attempt to apply an objective test based on the applicant's personal qualities or characteristics. This decision does not support the proposition for which the Applicant relies on it. 192 The Registrar did not disagree with the Applicant's submissions but argued that he did generally take the necessary matters into account as can be seen from his reasons. In par (k) of his reasons dated 7 July 2008 he considers the extent to which the driving offence impacted on the Applicant's ability to undertake her duties as a councillor in view of the circumstances giving rise to the offence. 193 I have accepted above that the Registrar did take into account the triviality of the offence in accepting the Applicant's account of events and that the failure to take into account the whole of the time since the offence was not sufficiently material to vitiate the determination. As submitted by the Applicant, the overall purpose and objects of an Act are relevant to establishing what is a relevant matter for consideration. The written reasons provided in relation to a determination under s 132(2) are not required to articulate these purposes and objects to the extent argued by the Applicant and not doing so is not an error of law identifiable by reference to Mason J in Peko-Wallsend at 44. 194 Once again the whole of the Registrar's reasons of 7 July 2008 should be read and these refer to various matters. There are 19 paragraphs setting out the reasons of the Registrar in some detail. These refer to matters the subject of these proceedings and other matters which are not subject to challenge. As submitted by the Registrar he did consider whether the offence impacted on the ability of the Applicant to perform her duties as a councillor and he considered that it did. 195 The Applicant also argued that reasons for a determination have to do more than recite what was taken into account by stating what was done with the material in question. It is necessary to read the reasons of 7 July 2008 as a whole. These set out the Registrar's reasoning in the context of the matters before him and articulate how he considered the circumstances giving rise to the act of driving. There is no approved form for the reasons and they should not be read with a "fine-tooth comb" approach looking for error. 196 The weight to be given to a relevant consideration is a matter for the Registrar not this Court. In Peko-Wallsend Mason J at 41 stated: It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power … 197 The Registrar does not dispute that the framework for the operation of the Act is as articulated by the Applicant. The reasons he provided when read as a whole demonstrate that this was an approach he considered in carrying out his role. There is no statutory requirement that he state that explicitly. There is no error of law based on the failure to disclose in the Registrar's reasons matters not explicitly referred to in the ALR Act in the terms referred to by the Applicant. The Applicant is unsuccessful on this ground of challenge. (b) taking into account irrelevant matters (APOC cl 31(a), (b), (c), cl 33) 198 The APOC at cl 31(a) (b) (c) state: In determining that the Driving Offence should not be ignored for the purposes of s 132 of the ALR Act, the Registrar erred in law by taking into account the following irrelevant considerations: (a) the fact of the Driving Offence (as opposed to the act giving rise to the Driving Offence); (b) the second reading speech to Road Transport (Penalties and Disqualifications) Bill [sic – Traffic Amendment (Penalties and Disqualifications) Bill 1998]; (c) the offence of driving whilst disqualified was considered a serious traffic offence under the Road Transport (Driver Licensing) Act 1998. Applicant's submissions 199 The Registrar stated that the act of driving while disqualified disclosed a disregard for the prohibition against the Applicant driving which was inconsistent with her role as a councillor. The Applicant claimed that it was an irrelevant consideration given that it is the acts giving rise to the offence which are to be considered under s 132(2) rather than the fact of the offence. 200 Similarly, the Applicant claimed that the Registrar's consideration of the fact that s 132(2) was expanded to capture the driving offence by an amendment to the ALR Act was an irrelevant consideration because the acts giving rise to the offence are relevant rather than the fact of any act constituting an offence. Notably the 2006 amendment to the ALR Act also added s 132(2) in order to preserve the democratic object of the Act. This was not considered by the Registrar. 201 In relation to APOC cl 31(b) and (c), the Applicant claimed the references to the Traffic Amendment (Penalties and Disqualifications) Bill 1998 and Road Transport (Driver Licensing) Act 1998 in stating that the driving offence was serious amounted to irrelevant considerations. Section 132(2) requires the Registrar to have regard to the acts giving rise to the traffic offence rather than the triviality or otherwise of the offence itself. Whether the offence itself was considered trivial or serious is irrelevant. Although the Applicant accepts that considering the maximum penalty prescribed for the offence could have some relevance in deciding whether the acts giving rise to the offence were trivial, there is no evidence that such permissible consideration was given. Registrar's submissions 202 The Registrar denied that he took into account irrelevant matters as alleged by the Applicant. He was entitled to take into account that the Applicant was disqualified from driving for two years as that meant the Applicant was convicted within the previous five years of an offence set out in s 25A(6) of the Road Transport (Driver Licensing) Act 1998. The Registrar denied the allegation that he misconstrued s 132(2) of the ALR Act as alleged or at all. 203 In relation to APOC cl 31(a), the consideration of the fact of the driving offence (as opposed to the act giving rise to the offence) is a matter he is entitled to take into account. Further, the act of driving by the Applicant giving rise to the offence was taken into account by the Registrar as referred to in the letter dated 7 July 2008 as well as the driving offence. It is a matter of merit as to the weight given to these matters by the Registrar (and not therefore reviewable). 204 In relation to APOC cl 31(b), the second reading speech, the Registrar has broad discretion and is able to take into account matters which indicate the seriousness with which Parliament regards the relevant offence. 205 In relation to APOC cl 31(c), the Registrar submits he was not required to ignore the fact that the offence was considered a serious traffic offence under the Road Transport (Driver Licensing) Act. Because the Parliament determines which acts will be regarded as offences and the range of punishment applicable, the view of Parliament is relevant to the determination of the seriousness or triviality of an act giving rise to any particular offence. That the Parliament considers the subject matter of the particular offence is serious is a relevant consideration. Finding on taking into account irrelevant matters 206 As stated by Mason J in Peko-Wallsend at 40, in order to succeed on a challenge based on a decision-maker considering irrelevant matters those matters must be either expressly or by implication matters which the decision-maker must ignore. There are no matters which are specifically referred under s 132(2) which the Registrar had to ignore in making his determination. Accordingly, in order to succeed the Applicant must establish that the matters she says were irrelevant (APOC cl 31a, b, c) had to be ignored as a matter of statutory interpretation. The Applicant stated that because of the objects of the Act and the functions of the Registrar under s 132(2) in fulfilling those objects those matters had to be ignored. No such inference arises from the broad objectives of the ALR Act as relied on by the Applicant. 207 I agree with the submission of the Registrar set out at par 202 in response to the Applicant's case to the effect that, provided he took into account those matters he had to, he had broad discretion to consider those matters he considered relevant within the context of the ALR Act. Accepting the Applicant's submissions concerning the scope and purpose of the role of councillors under the Act, it was not an irrelevant matter to consider the nature of the driving offence, in addition to the triviality of the act giving rise to the offence. Further, the second reading speech was relevant to his consideration of the seriousness with which Parliament regarded offences of that kind and that the offence of driving whilst disqualified is a serious traffic offence under the Road Transport (Driver Licensing) Act. Those are all the matters referred to in APOC cl 31(a), (b), (c) in the context of matters raised in cl 33 which were said to be irrelevant. The Applicant fails on this ground of challenge. (c) manifestly unreasonable (APOC cl 34) 208 The Applicant alleged that the Registrar acted unreasonably in the sense described by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 in the exercise of his discretion under s 132(2). The offence occurred over five and a half years before the determination and carries a maximum penalty which must be in the lower end of the range of the offences caught by s 132(2). A very large range of offences are liable to a punishment of 12 months imprisonment and more. The offence involved no dishonesty or violence. It is simply outside the range of what the Act requires to be considered to say that it should not be ignored. If the discretion does not apply in this case it is difficult to consider when it might apply. 209 The Registrar denied that he acted unreasonably. The Applicant was convicted of a serious driving offence as can be determined from the maximum penalty available of two years. Finding 210 The Applicant did not spend much time on this ground of challenge in comparison with other submissions. The Applicant relied on Brennan CJ in Kruger v Commonwealth (1997) 190 CLR 1 at 36 for the proposition that: when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. The Applicant noted however the high threshold for setting aside a decision as unreasonable as described by Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 citing Wednesbury . 211 As stated in Peko-Wallsend by Mason J at 40-41: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). ...in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation , at pp.230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it… 212 A number of decisions have considered Wednesbury in determining whether a decision was unreasonable in the context of a particular case. In Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 Spigelman CJ (with whom Beazley and Tobias JJA agreed) stated at [129]: Perhaps the most appropriate formulation is whether the decision is 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds': Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165. This formulation has since been quoted with approval in Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 617 (Bignold J at 193), Save Our Street Inc v Settree (2006) 149 LGERA 30 (Biscoe J at [29]), Cutelli v Wyong Shire Council [2007] NSWLEC 137 (Jagot J at [35]), Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274 (Pain J at [127]), Teoh v Hunters Hill Council [2008] NSWLEC 263 (Sheahan J at [12]). 213 I consider the submissions made by the Applicant amount to contesting the merits of the Registrar exercising his discretion under s 132(2). The test in Murrumbidgee Groundwater is not met on the facts in this matter. It is not a matter therefore which I can consider in judicial review proceedings. This ground is not proven on the evidence by the Applicant. (d) procedural fairness/apprehension of bias (APOC cl 35) 214 The Applicant argued firstly, she had been denied procedural fairness because (a) the Registrar failed to disclose to the Applicant the allegation that the driving offence was a second or subsequent offence for driving whilst disqualified (APOC cl 35(a)). Alternatively, the Registrar failed to disclose to the Applicant that he considered the issue of whether the driving offence was a second or subsequent offence for driving whilst disqualified was relevant and material to his decision (APOC cl 35(b)); (b) the Registrar failed to disclose to the Applicant the nature and content of the complaint to the NSWALC and his investigation into it (APOC cl 35(c)). Secondly, there was the appearance that the Registrar did not bring an unbiased mind to making the decision because of the nature of the complaint from the NSWALC, his investigation of it and his perception that he was required to or would bring an application to the ADT for an order declaring the Applicant's position vacant if he determined not to ignore the driving offence APOC cl 35(d)). Further he was interested in the matter for these reasons (APOC cl 35(e)). 215 Nearly all the events relied on by the Applicant in relation to procedural fairness (and apprehension of bias) are identified at length in the APOC in cl 21A-27 set out above and the parties' bundle of documents and can be summarised as follows. In January 2008 the Registrar received a complaint from the NSWALC asking him to investigate a possible breach of the ALR Act by the Applicant because of the existence of her driving offence (APOC cl 21A). On 25 January 2008 additional material was sent by the NSWALC to the Registrar (APOC cl 21B). On 29 January 2008 the Registrar wrote to the NSWALC stating that he would undertake further enquiries given the information about the Applicant's conviction disclosed in Maclean Local Court bench papers for the conviction in January 2008 (APOC cl 21C). The Registrar considered it was his role to determine whether the Applicant had been disqualified from holding office, despite s 165 conferring no such function on him. The Registrar wrote to the Applicant on 15 February 2008 saying he was investigating whether she was disqualified as a candidate and asked her to provide a statutory declaration setting out matters related to the driving offence. He also stated he would take action in the ADT to seek an order that her position as councillor be declared vacant (APOC cl 21D). This letter was copied to the NSWALC as he considered it arose from the complaint. 216 The Applicant admitted the driving conviction in March 2003, identified the circumstances and requested the Registrar ignore the driving conviction by letter dated 10 March 2008 (APOC cl 22, 23). The submissions put on her behalf by her counsel stated that if the Registrar proposed to consider other submissions from third parties the Applicant wanted the opportunity to address them. The Registrar wrote to the Applicant on 25 March 2008 (APOC cl 24) but did not refer to her record or subsequent offences or the contents of the complaint from the NSWALC. On 2 April 2008 the Registrar received documents from Maclean Local Court in relation to the driving offence. This included a certificate from the RTA stating the Applicant was disqualified from driving for one year after being convicted in January 2002 for driving whilst her licence was cancelled (which was not included in the attachments to the Applicant's submissions of 10 March 2008). This was not disclosed to the Applicant. Further submissions dated 13 April 2008 were made on behalf of the Applicant to the Registrar (detailed in APOC cl 25). By letter dated 19 May 2008 the Registrar told the Applicant he had determined not to ignore her driving offence for the purposes of s 132 of the ALR Act and that he would go to the ADT to seek a declaration unless she resigned (APOC cl 26). It was not the Registrar's function under s 165 of the ALR Act to apply to the ADT and he cannot do so as the Registrar. This was raised in a letter from the Applicant's solicitors to the Registrar dated 30 May 2008. 217 Between 11 and 17 June 2008 there were numerous communications between the NSWALC's principal legal officer and the Registrar. The Registrar told the NSWALC on 17 June 2008 that the Applicant was disqualified from holding office as a councillor and that it was a breach of the ALR Act for her to remain in office (APOC cl 26A-26E). The Registrar told the Minister of his views and obtained legal advice that he was not going to take any further action as her position was automatically vacant. Further reasons for the decision not to ignore the offence were provided by the Registrar to the Applicant dated 7 July 2008 (these reasons are detailed in the APOC cl 27, 28, 29). Applicant's submissions (i) procedural fairness (a) whether second or subsequent driving offence 218 In the reasons dated 7 July 2008 at par (e), the Registrar found that the 2003 driving conviction was a second or subsequent offence for driving whilst disqualified. He inferred this from the two-year disqualification imposed on the Applicant by the local court which can only be imposed in the case of a second or subsequent conviction. The Registrar never gave the Applicant any indication that he was considering whether the convictions in January 2008 disclosed a previous offence. She was therefore denied procedural fairness because she had no opportunity to address the Registrar on whether he was correct that it was a second or subsequent offence for driving whilst disqualified, and whether that affected the question of triviality of the act giving rise to the offence such as when it happened, the circumstances surrounding it and whether these were different to those relating to the prior offence. 219 Adverse material should have been disclosed to the Applicant even if not relied on by the Registrar, such as the information received from the Maclean Local Court on 2 April 2008, per Kioa v West (1985) 159 CLR 550 at 628. It is not relevant that the Applicant should have told him the information as it was not her function to find out information. It is up to the Registrar to satisfy himself, see the unanimous decision of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 33. It is not material whether the Applicant knew the information in fact. She may or may not remember that information. The relevant issue is what the Registrar considers. If a second or subsequent offence is relevant the Applicant should have been able to be heard by the Registrar on both matters. (b) complaint by NSWALC 220 The Applicant claimed that the material sent by the NSWALC to the Registrar in the letter dated 17 January 2008 should have been forwarded to her. The complaint and the information provided to the Registrar were described in detail to the Applicant by the Registrar in the letter dated 29 January 2008. The attachments sent by NSWALC (the local court bench sheets and newspaper report) were also described. The bench sheets and newspaper report were adverse material from a third party on a topic closely related to the driving offence and should have been supplied to the Applicant. It makes no difference whether the Registrar ignored it or whether the Applicant's submissions in relation to this material would have made any difference; see Brennan J in Kioa 629, 633. (ii) apprehension of bias 221 It is clear that the Registrar was fulfilling multiple roles in relation to this matter. These included: (a) considering whether to ignore the driving offence under s 132 which required consideration of two specific matters, the time that had passed since the offence and the triviality of acts giving rise to the offence; (b) considering and advising NSWALC on possible breaches of the ALR Act and its complaint, which involved a far wider inquiry including publicity, probity and integrity of the NSWALC and the ALC system and NSWALC's obviously adverse attitude to the Applicant; (c) considering whether to file an application to the ADT against the Applicant, which included a discretionary question of whether he should do so; and (d) briefing the Minister's office. 222 All these matters meant that a fair minded lay observer might reasonably apprehend that the Registrar might not bring an impartial mind to the specific function he was required to perform under s 132(2) of the ALR Act; per Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344. 223 The Registrar has raised the defence of necessity by claiming that all the above roles must be fulfilled in order for him to carry out his functions under the Act. Necessity, which applies after a finding is made of a reasonable apprehension of bias, was described in the context of apprehended bias of a tribunal member by Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 89: The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. The defence of necessity requires that it was necessary for the Registrar to perform the roles he was performing. This is clearly not the case in respect to possibly bringing an application to the ADT. It was also not the case in respect of briefing the Minister or advising NSWALC. As far as breaches of the Act are concerned his functions in that regard are confined to those for which he could issue a compliance direction (s 235), and whether the Applicant should continue to hold office was not a matter within that power to issue directions because it was provided for elsewhere in the ALR Act; s 235(3)(b). The fact that the Registrar seems to have considered he had some sort of roving commission to advise and act on anything relating to the ALR Act despite the specific nature of the functions conferred on him by the ALR Act does not lead to the conclusion it was necessary he do all these things. The only thing he was required to do was exercise his function under s 132(2). Registrar's submissions (i) procedural fairness 224 The Registrar denied that the Applicant was not accorded procedural fairness. As a broad principle, stated in Kioa, a person about whom a decision is being made is entitled to be informed of and respond to adverse material under consideration by the decision-maker. In Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 Gaudron J at [97] observed: Of course, if a Minister rejects an application simply because he or she is not satisfied as to some or all of the information provided by an applicant, there will be no occasion for him or her to consider the exercise of his or her power to invite further submissions or further information. However, if he or she has regard to information other than that provided by the applicant, a question will arise whether procedural fairness requires that the powers conferred by ss 54(3) and 56(2) be exercised to permit the applicant to put submissions or provide further information. Inevitably, the answer to that question must depend on the nature of the claims made by the applicant and the information to which the Minister has had regard. (a) whether second or subsequent driving offence 225 That the 2003 driving conviction was a second or subsequent offence was obvious from the material contained in the Applicant's submissions made by her legal representative. The Applicant's evidence in these proceedings does not assert that she was unaware that the driving offence was her second or subsequent offence. The requirements of procedural fairness did not require the Registrar to disclose that fact to the Applicant. The Applicant's complaint must be viewed in light of the fact that she was asked to provide her consent to the Registrar to obtain a copy of her criminal and traffic offence history. She initially gave her consent and then withdrew it. The Registrar sought a statutory declaration from her attesting to the existence or absence of any disqualifying convictions, which she declined to provide. Her disclosure was made by way of an unsworn written submission from her legal representative. Her legal representative asserted that the offence of disqualified driving carries a maximum penalty for a first offence of driving whilst disqualified of 18 months. The submission positively asserted that the penalty applicable was that for a first offence. The fact that the local court records provided with her counsel's submissions showed that the disqualification period was two years suggests that the offence was a second or subsequent offence. There was further opportunity to rectify that submission before the Registrar made his decision. As the Applicant had legal advice, was the only person in possession or ought to have been in possession of her traffic offence history and relied only on unsworn statements, the claim of procedural fairness must fail. Further, the evidence shows that the Registrar relied on the information supplied by the Applicant and not any information he obtained separately on 2 April 2008. 226 Alternatively, if the Court finds there was a failure to alert the Applicant that the Registrar was aware of the relevant offence and was intending to rely on that information, it was not crucial or determinative of the decision, per Gummow J in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at [228]. The onus of establishing that the matter was material falls on the Applicant. The primary basis for the decision that the matter was not trivial was that the offence was for driving whilst disqualified and not whether it was a second or subsequent offence. (b) complaint by NSWALC 227 In relation to APOC cl 35(b), in order for the Applicant to succeed the Applicant must demonstrate that the nature and content of the complaint were relevant to the exercise of the Registrar's discretion. The view of the NSWALC as to whether the Applicant is a disqualified person is not relevant to the exercise of the Registrar's decision. The content of the complaint was not material which could be taken into account in the exercise of discretion under s 132(2) and was not taken into account. The material in the complaint raised issues that were irrelevant to the exercise to be undertaken under s 132(2). There was no obligation to disclose to the Applicant the nature and content of the complaint and his investigations into it as they were not relevant to the exercise of his discretion. (ii) apprehension of bias 228 The apprehension of bias alleged is based on the Registrar receiving and dealing with a complaint from the NSWALC and also undertaking an investigation into a possible breach of the ALR Act while also exercising his discretion under s 132(2) of that Act. The Applicant was told the complaint had been received in a letter from the Registrar dated 29 January 2008 and that the complaint concerned information within the police fact sheets which were before the Maclean Local Court for the Applicant's conviction on 15 January 2008. The Registrar considered that he should investigate the complaint under s 165(h) of the ALR Act. He stated that he was going to investigate the possibility that a disqualifying conviction was recorded on 11 March 2003 and sought the Applicant's consent to obtain her traffic offence record. She did not request a copy of the complaint. The investigation was completed when the Applicant's submissions sent by her legal representative made an unsworn admission as to the existence of the disqualifying offence. The complaint remained on foot until determination of the Applicant's request for a determination under s 132(2) had been finalised. 229 That there was a complaint on foot while he was exercising his discretion under s 132(2) does not give rise to an apprehension of bias. On these facts that could only arise if there was proof the Registrar was predisposed or appeared to be predisposed to a particular outcome. No such predisposition is disclosed by the evidence. There is no evidence that the Registrar relied on the material including draft letters sent by the CEO of NSWALC for the purposes of the complaint or any other purpose. 230 That the Registrar held the belief that he could make an application to the ADT in the event that he did not exercise his discretion in favour of the Applicant and she did not resign does not create an apprehension of bias. The application was to declare the office of the Applicant vacant pursuant to s 135 of the ALR Act, which is a separate matter from that arising under s 132(2). The role of the ADT under s 135 is not to review the Registrar's decision under s 132(2). Finding on procedural fairness/apprehension of bias (i) procedural fairness 231 Both parties agreed that the Registrar is required to accord procedural fairness in the exercise of his functions under s 132(2) and the test was articulated by Mason J in Kioa at 569 that where the rules of natural justice apply a party is entitled to a fair opportunity to comment on relevant prejudicial material before a decision is made. The Registrar argued that he did accord the necessary procedural fairness to the Applicant. She argued the contrary. 232 While the general principle in Kioa is readily stated it is necessary to apply that broad principle to the circumstances before me. There are no cases where these issues have been considered in this context that the parties are aware of. As noted in Kioa by Mason J at 585 the critical question in most cases is what does the duty to act fairly require in the circumstances of a particular case and that requires examination of the relevant statutory provisions. There are no procedures identified in the ALR Act or Regulation as to how the Registrar should approach the determination he may make under s 132(2). It is therefore necessary to consider his actions within the broad framework of the ALR Act. The Applicant has made lengthy submissions concerning the purpose behind the power conferred on the Registrar to make determinations under s 132(2), being the identification of a person as fit and proper to fulfil the important role of a councillor on the NSWALC. Her counsel has identified purported failures of the Registrar in his communications with the Applicant and her legal representatives to support the challenge on the basis of procedural fairness on two grounds. (a) whether second or subsequent offence 233 The first failure alleged is the non-disclosure of material adverse to the Applicant before making his decision, namely the finding of the Registrar that the 2003 driving conviction was for a second or subsequent offence. Consequently the Applicant argued she did not have the opportunity to respond as to whether that was correct and whether it affected the circumstances surrounding the triviality of the 2003 driving conviction the Registrar was considering. The Registrar referred to the 2003 driving conviction as a second and subsequent offence in par (e) of the letter of reasons dated 7 July 2008. His evidence is that he was able to deduce that fact from the local court bench sheet provided by the Applicant in relation to the 2003 conviction. That she was sentenced to a two year driving disqualification suggests the conviction was a second or subsequent conviction because a first offence is punishable by a maximum of 18 months disqualification. While he requested bench sheets from Maclean Local Court and received these in April 2008 which confirmed this view, he did not consider these as part of his determination under s 132(2). 234 The Registrar relied on Ex parte Miah in his submissions where Gaudron J held that when information other than from an applicant is considered by a decision-maker whether that information should be supplied to an applicant depends on the circumstances. This situation does not arise on the facts. The Registrar states that he relied only on the material supplied by the Applicant in making his determination and there is no material to contradict that. That he had also received information from the NSWALC and the Maclean Local Court did not have to be disclosed as he did not rely on it in order to satisfy procedural fairness requirements. 235 I agree with the Registrar's submissions that the whole of the interactions between him, the Applicant and her legal representatives need to be considered to determine if there was a denial of procedural fairness, as outlined above in par 225. The Registrar asked for the Applicant's permission to obtain her driving record which was ultimately not granted. He made his own inquiries and obtained material known to her given that it was her driving record. The Applicant has not sought to establish that the 2003 conviction was not a second or subsequent offence in these proceedings. The submission of her counsel in March 2008 concerning the 2003 driving conviction was apparently incorrect in asserting that the maximum penalty was disqualification from driving for 18 months. 236 When the lengthy communications between the parties and the reasons provided are read as a whole I agree with the Registrar's submission that it is not demonstrated by the Applicant that this issue was material to his determination under s 132(2). Rather the gravamen of the reasons deals with the offence itself, not that it was a second or subsequent offence. On one view the Registrar was recording accurately in his reasons dated 7 July 2008 the position of the Applicant in light of the fact that she received a two year suspension from driving for the 2003 conviction. 237 In relation to the Applicant's submission that the adverse material should have been disclosed, the Applicant submitted that the Registrar had a duty to investigate such matters relying on Hardiman. Hardiman concerned the carrying out of investigations by the Australian Broadcasting Tribunal (ABT) which had specific investigatory powers under its operating Act. It was held in a joint judgment of Gibbs, Stephen, Mason, Aicken and Wilson JJ that the tribunal had a duty to thoroughly investigate matters relevant to its inquiry and had failed to discharge that duty because it precluded itself from discharging the duty due to rulings made. That case considered a quite different statutory framework to that under the ALR Act which included specific powers conferred on the tribunal in question which the Registrar does not have. The Registrar's functions in s 132(2) of the ALR are not analogous to those of the ABT under the Broadcasting and Television Act 1942 (Cth). I do not agree with the Applicant's submissions on this point. 238 A relevant decision referred to by the Registrar to consider in these circumstances is Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. The Federal Court (Northrop, Miles and French JJ) at [134] held in the context of the Migration Act 1958 that while a decision-maker is required to advise of any adverse findings arrived at which would not be open on the known material he or she is not obliged to expose all mental processes or views before making a decision, cited with approval by the Federal Court in MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94. 239 The Applicant was legally represented when her submissions were made and can be presumed to be aware of her driving record as part of the known material. It is not a legal requirement that in order to accord procedural fairness the Registrar had to alert the Applicant to factors which can be presumed to be within her knowledge before making the determination. The Applicant's counsel submitted that it was up to the Registrar to alert her to those matters he considered were relevant and not up to the Applicant to alert him of the fact it was a second and subsequent offence. The information on which the Registrar determined this aspect of the matter was supplied by the Applicant. In these circumstances there was no requirement of procedural fairness to advise her of the matter alleged before making his determination. (b) NSWALC's complaint 240 The Registrar told the Applicant of the complaint by the NSWALC in his letter of 29 January 2008. That letter referred to the attachments to the complaint being the police fact sheets and the newspaper article which both referred to the Applicant's conviction for a driving offence in the Maclean Local Court on 15 January 2008. The Registrar disclosed in the letter that he had received a complaint and its general nature to the Applicant. One of the Registrar's functions under s 165(h) of the ALR Act is to investigate complaints. There was no statutory requirement under the Act or Regulation as to how the Registrar should investigate complaints, or requiring him to disclose the complaint to the Applicant. He did advise the Applicant of the complaint being received and its substance. 241 There was no specific obligation on him to further advise the Applicant of his responses to the NSWALC. When the correspondence between the Applicant and the Registrar, referred to in the chronology above in par 161, is considered in full it is clear that he kept her informed through her legal representative of what steps he was taking in relation to the investigation he was undertaking in relation to the breach of the Act. It is also relevant to note that the Applicant did not request a copy of the complaint despite being legally represented in her dealings with the Registrar. 242 There was no failure to accord procedural fairness to the Applicant in the circumstances and the challenge on this ground fails. (ii) apprehension of bias 243 Ebner is widely recognised as providing a relevant test for whether an apprehension of bias arises for those exercising statutory functions. The facts in Ebner concerned whether there was an apprehension of bias resulting from a judge holding shares in a bank which had a financial interest in the outcome of the litigation and/or was a party to the litigation. The test propounded in Ebner in the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issue before them. As the decision recognises (at 343), that principle has been extended to many other kinds of decision making and decision makers. The application of the principle is described in two steps at 345: The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 244 The application of the test in Ebner was considered in the Court of Appeal in McGovern v Ku-ring-gai Council (2008) 161 LGERA 170 in the context of a multi-member elected decision-making body, a local council. The test for apprehended bias applies to statutory decision-makers and is affected by the functions they are required to perform and the identity and nature of the decision-maker who is obliged to perform those functions. This requires a context specific approach, usually as part of a process of statutory interpretation and the judicial paradigm is not universally applicable (per Spigelman CJ at [2], [7], [10]). Similar findings were made by Basten JA at [71] and [75] referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Hayne J at [179]-[187] as an example of how different standards to those applying to judges will operate in relation to ministerial decision-making in that case, because of the need to take into account the particular role and functions of the decision-maker. 245 The cases referred to above were concerned largely with apprehension of bias based on whether there was likely to be an apprehension that the decision-maker had prejudged the matter which had to be determined. The circumstances raised in these proceedings as giving rise to an apprehension of bias are quite different from those cases. As identified by Basten JA in McGovern at [151] (with whom Spigelman CJ and Campbell JA concurred on this point), it is necessary to consider the particular statutory framework in which the decision-maker is operating in determining the considerations relevant to an allegation of apprehension of bias. 246 The Registrar's functions in s 165 relate, inter alia, to the registration of land claims, the maintenance of the Register of Aboriginal Land Claims and the Register of Aboriginal Owners and the making of recommendations to the Minister in relation to changes to area boundaries of local aboriginal land councils, inter alia. Under s 165(h) the Registrar is to investigate complaints regarding, inter alia, the non-disclosure of pecuniary interests, misbehaviour by councillors and Board members, inter alia, and breaches of the Act and the Regulation. Under s 165(h1) if the Minister so requests the Registrar is to provide information about the operations of an aboriginal land council. Other functions can be statutorily conferred on the Registrar under the Act, as has occurred in relation to s 132(2). Under s 165 there is no limitation in terms of the Registrar carrying out any of those functions simultaneously. The Registrar is empowered under s 235 to issue compliance directions at the request of any person or body to an aboriginal land council or an officer of a land council or a councillor requiring compliance with the Act or Regulation made under the Act. He cannot issue a direction if the matter constitutes an offence under the Act or the determination of the matter is provided for in another section of the Act (s 235(3)). There are no specific provisions in the Act or the Regulation for how the Registrar should carry out his functions under s 165, including the handling of complaints. 247 The Applicant argued that because the Registrar fulfilled other functions (par 221 identifies four, investigation of breaches of the Act, considering and advising NSWALC on possible breaches of the ALR Act and its complaint, potential prosecution of the Applicant in the ADT and briefing the Minister) at the same time as making a determination under s 132(2) a fair minded observer might reasonably apprehend that the Registrar might not bring an impartial mind to the exercise of his discretion. Additionally the investigation into whether the Applicant should be disqualified was not within his defined functions under the ALR Act. It was not one of his functions to determine if the Applicant should be disqualified as a councillor and pursued proceedings in the ADT. As a result of carrying out this activity allegedly as part of his functions he was interested in the determination he was required to make in relation to s 132(2). I infer the Applicant is seeking to argue that he might be perceived by a fair-minded observer as not acting dispassionately in the determination he made under s 132(2), so that an apprehension of bias arises. 248 Consistently with s 165(h) the Registrar has the function of investigating complaints about breaches of the Act and the Applicant's situation was drawn to his attention in the context of a complaint by the NSWALC about a possible breach of the Act. The driving offences first drawn to his attention by the NSWALC did not fall within s 132(1)(c). He commenced an investigation into the matter raised by the NSWALC of whether there was a breach by the Applicant of s 132 of the Act, the relevant code of conduct or misbehaviour provisions. He told the NSWALC by letter dated 29 January 2008 that he was continuing to investigate the matters raised concerning the Applicant's driving offence convictions. He wrote to the Applicant on 29 January 2008 advising her of the complaint. There was correspondence and telephone calls with the Applicant's legal adviser. In the letter dated 15 February 2008 from the Registrar to the Applicant he advised of his investigation into whether she was disqualified from holding office under s 132(1)(c) of the Act. He advised that he considered he had to determine whether there were convictions relevant to s 132(1)(c) and sought a statutory declaration about certain matters. If there were such a conviction he also asked if the Applicant wished him to consider exercising his discretion to ignore the convictions pursuant to s 132(2) of the Act and to provide him with any matters she wished to be taken into account in considering that matter. 249 The Applicant's response was in the form of written submissions from her counsel which advised there was one offence of which she was convicted which fell within s 132(1) of the Act. This appears to be the first time the Registrar became aware of the 2003 driving conviction. The Applicant requested the Registrar through her counsel's submissions dated 10 March 2008 to consider whether the 2003 driving conviction should be ignored for the purposes of s 132(1) of the Act. Submissions were made concerning the application of s 132 in similar terms to those made by the Applicant's counsel in these proceedings concerning the broad range of offences falling within s 132(1)(c), and the fact that many of these have no relationship to the fitness or ability of a councillor to carry out their functions. Submissions on the time since the offence and the triviality of the offence were also made. 250 In his response dated 25 March 2008 the Registrar stated that the submissions did not deal with the circumstance surrounding the effluxion of time since the offence was committed. The Registrar at that stage stated that without further information the time that had elapsed since the Applicant nominated as a candidate was not capable of being taken into account in the Applicant's favour. She was invited to make further submissions in relation the circumstances of her non-disclosure of the offence when she nominated for election as a councillor which he could take into account in relation to the time that had elapsed. Supplementary submissions were received from the Applicant's legal representative. He disputed that any of the additional information sought was relevant to the Registrar's consideration of matters under s 132(2) but nevertheless responded as he was instructed to do. The letter of 19 May 2008 from the Registrar provided his determination that he had decided not to ignore the offence in accordance with s 132(2) of the Act. It also stated that the Applicant was disqualified from holding office as a councillor on the NSWALC from the time of appointment. He stated that the appointment was null and void and requested her resignation. If that was not forthcoming he stated that he would apply to the ADT under s 135(1) to seek an order that her position be made vacant. In a later letter dated 18 June 2008 the Registrar advised that no application to the ADT was necessary as she was automatically disqualified. His further expanded reasons for the determination under s 132(2) were provided by letter dated 7 July 2008. He also briefed the office of the Minister for Aboriginal Affairs on 17 June 2008. 251 Given that the complaint from the NSWALC raised issues concerning s 132 of the ALR Act, which deals with grounds for disqualification of councillors, the Registrar was investigating a matter that came within the scope of his functions under s 165(h), contrary to the Applicant's submission. The circumstances giving rise to a potential breach of the Act, the subject of his investigation, concerned whether there was a conviction to which s 132(1)(c) applied. Because of the timing of events this also involved considering the circumstances of the Applicant's election and the swearing of the incorrect statutory declaration by her in breach of cl 47(1)(c1) of the Regulation, there being no rectification of that failure under cl 47(4) before the close of nominations. His investigation of the breach of the Act was within the functions the Act required of him under s 165(h). 252 The Registrar's investigatory functions under s 165(h) are not limited in terms to those matters in which he can issue a compliance direction under s 235, contrary to the Applicant's submissions (par 223). There is no principle of statutory construction which suggests his functions under s 165(h) should be limited in light of s 235(1). This view is also supported by s 235(3) which states the circumstances when a direction is not to be issued. His investigative powers under s 165(h) include consideration of breaches of the Act. Under s 235(3)(a) he is not able to issue a compliance direction if a matter constitutes a breach of the Act. Further, under s 165(f) one of his functions is issuing compliance directions to specified persons. That function is separate from the investigative function under s 165(h). The Applicant's submission that the only role the Registrar had was to exercise his discretion in determining the matter under s 132(2) ignores the wide ranging function the Registrar has under s 165(h) of the Act. Further, there is nothing in the Act suggesting that the Registrar should not also brief the Minister when he considers it appropriate. He must brief the Minister if he receives a request for information from him or her (s 165(h1)) 253 The Registrar's submissions at par 228-230 concerning the exercise of more than one of his functions at the same time are correct. Given that during the investigation process the Applicant requested him to exercise his discretion under s 132(2), it is difficult to see how, as a practical matter, he could have separated more clearly the various functions he was performing. The fact that he carried out more than one function does not alone satisfy the requirement the Applicant must meet in identifying the matters relevant to the two part test identified in Ebner. 254 The Applicant argued that the Registrar was relying on a defence of necessity in referring to the need to undertake more than one function at a time and submitted this meant by implication that he admitted there was an apprehension of bias (par 218). I do not find below that any apprehension of bias existed. The statute clearly provides for the Registrar to undertake numerous functions and his investigation function is broad. Whether or not it is necessary that he exercise multiple functions, given the terms of the Act there is no reason to confine his functions under s 165 or infer that these should not be carried out at the same time. 255 It is unclear on the Applicant's case how the two steps identified by Gleeson CJ, McHugh, Gummow and Hayne JJ at [8] in Ebner are satisfied. The first step requires the identification of what interest would lead the Registrar to decide the matter other than on its merits. The Applicant does not clearly identify the nature of the interest which the Registrar has which might cause a fair minded observer to conclude that he might not make the determination under s 132(2) impartially. The inference from the Applicant's case seems to be that he had an interest in seeking the disqualification of the Applicant or was unreasonably influenced by her conduct in seeking election while disqualified, in relation to his determination under s 132(2). I have already determined that the Applicant's challenge to the determination on the basis of failing to take into account relevant matters, taking into account irrelevant matters and unreasonableness, ought to fail. There is no other issue raised in the Applicant's submissions which the Registrar is said to have considered as the basis for the determination which suggests he has done anything other than consider the determination as he is required to do. 256 The second part of the test requires that there be a logical connection between the interest alleged and the possibility of deviation from deciding the case on its merits. Given that there is no interest articulated, this second step cannot be satisfied. In terms of the argument mounted, the Applicant submitted that there was an apprehension of bias because the Registrar considered he should apply to the ADT for a declaration that the Applicant's position was vacant, and that was not part of his functions. I note that he subsequently changed his mind that such an application was necessary because he considered the Applicant's position was automatically vacant. I surmise that the Applicant seeks to argue that because the Registrar also considered he had to deal with whether the Applicant's position as a councillor was vacant due to her disqualification under the Act, this gave rise to an "interest" in the outcome so that his determination of whether to ignore the driving conviction under s 132(2) might not be seen as having been conducted impartially from the perspective of a fair minded observer. 257 That there were in the Registrar's view legal consequences for the Applicant as a result of his determination not to exercise his discretion to ignore the 2003 driving conviction, whether or not that view may be correct, does not identify a matter that he took into account as part of his determination in relation to s 132(2). As submitted by the Registrar (par 230) an application to the ADT under s 135 of the Act is a separate matter from the issue he had to consider under s 132(2). 258 While the Registrar submitted there would have to be some evidence that the Registrar appeared to be predisposed to a particular outcome the "might/might" test of apprehension of bias does not require that level of proof to be established. In McGovern at first instance I held that apprehension of bias in the case of councillors on a elected council had to be firmly established and that the test was whether a fair minded observer would consider the decision-maker would not act impartially. This was criticised as setting too high a threshold by Spigelman CJ at [3] and Campbell JA at [236]. Basten JA did not so hold at [115]. Applying the lower threshold approved by the majority in McGovern, looking at the circumstances before the Registrar and aware of his functions under the Act, a fair minded lay observer would not reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of his functions under s 132(2). There is no apprehension of bias in these circumstances and the Applicant's challenge on this ground fails. 259 The Applicant is unsuccessful on the failure to accord procedural fairness and the apprehension of bias ground. Her challenge to the Registrar's determination not to ignore her 2003 driving conviction under s 132(2) is unsuccessful and that determination stands. Concluding remarks 260 The issues raised by the circumstances of this case are novel in the context of the ALR Act. I have determined that the Applicant was validly elected as a councillor by the returning officer (par 130) so that the issue arises of whether the orders she seeks in prayers 1 to 3 of her Class 4 application ought be made. I have also held that s 132 and 133(e) of the ALR Act apply to her present circumstances (par 135) so that the possibility of the declaration of vacancy of her position arises. I held in relation to issue 2 of the cross-claim (par 151) that the Applicant was not immediately disqualified on taking office. Section 22 of the Court Act states that the Court must grant all remedies to which the parties appear to be entitled so that as far as possible all matters in controversy between the parties can be completely and finally determined in order to avoid a multiplicity of proceedings. 261 I have determined the judicial review proceedings of the Registrar's determination against the Applicant. The issues arise of whether I have jurisdiction to consider whether the Applicant's position as councillor should be declared vacant and whether I should exercise that jurisdiction. This was not a matter that was fully explored in argument and requires further consideration by the parties. An added complication may be that the period of disqualification for the 2003 driving conviction of five years under s 132(1)(c) expired on 11 March 2008. I will ask the parties if they wish to make further brief submissions in this matter about the appropriate orders that should be made and whether further issues arise before finalising any orders. The issue of costs also needs to be considered by the parties. 14/05/2009 - text deleted - Paragraph(s) 8 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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