FEDERAL COURT OF AUSTRALIA

Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092

ORDERS

THE COURT ORDERS THAT:

1.    The application made under the Australian Human Rights Commission Act 1986 (Cth) is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

Introduction

1    The question in these proceedings is whether the passing of resolutions for, and the facilitation of the conduct of, a non-binding ballot by a local government authority on a franchise constituted by the persons entitled to vote in elections for the authority, and which excludes native title holders, is unlawful by reason of subs 9(1) and (1A) of the Racial Discrimination Act 1975 (Cth) (the RD Act).

2    The District Council of Kimba (the Council), which is the respondent in these proceedings, resolved to conduct a non-binding ballot in order to ascertain the support within its community for the construction and maintenance of a radioactive waste management facility within its local government area.

3    The applicant, Barngarla Determination Aboriginal Corporation RNTBC (BDAC), contends that the passage of the resolutions and the facilitation of the ballot infringed s 9(1) and (1A) of the RD Act. The Council contends to the contrary. The Attorney-General for the State of South Australia intervened, and supported the position of the Council.

4    Shortly after BDAC filed their application in this Court, a related set of proceedings were instituted (Taylor v District Council of Kimba, Action SAD296/2018). The parties agreed that, given the commonality of the liability issues, the progress of Action SAD296/2018 should be deferred pending the hearing and determination of these proceedings.

5    For the reasons which follow, I consider that the question identified at the commencement of these reasons should be resolved in the negative, and that BDAC’s application should be dismissed.

The parties

6    On 23 June 2016, this Court made a determination of native title, pursuant to the Native Title Act 1993 (Cth) (the NT Act), in favour of the Barngarla People in respect of a large area on Eyre Peninsula in South Australia: Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 (Croft (No 2)), but the commencement of the determination was deferred. As is commonplace, the determination identified areas within the overall determination area within which native title exists and areas in respect of which it has been extinguished. The native rights declared in the determination are non-exclusive rights to use and enjoy the land and waters in accordance with the traditional laws and customs of the Barngarla People.

7    The determination in Croft (No 2) was amended on 6 April 2018 and came into effect on the same day: Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 3) [2018] FCA 552 (Croft (No 3)).

8    BDAC is a body corporate established under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act). It was registered with the Office of the Registrar of Indigenous Corporations on 11 April 2017 and is the prescribed body corporate for the purposes of s 57(2) of the NT Act in respect of the determination area. No issues were raised about its standing to bring the proceedings.

9    The Council is a council constituted under the Local Government Act 1999 (SA) (the LG Act). It is responsible for an area of approximately 3,500 sq km on Eyre Peninsula. Land over which the Barngarla People have been determined to have native title comprises approximately 10% of the Council’s local government area.

10    As at 30 June 2018, BDAC had 211 members. The addresses for those members at 30 June 2018 shown in the General Report filed with the Office of the Registrar of Indigenous Corporations suggest that at that time none of them resided within the Council’s area.

Proposals for the radioactive waste management facility

11    This action has its genesis in the nomination of properties within the Council area as the site for the proposed National Radioactive Waste Management Facility (the Waste Facility) under s 7 of the National Radioactive Waste Management Act 2012 (Cth) (the NRWM Act).

12    The object of the NRWM Act, as stated in s 3, is to provide for the selection of a site for the Waste Facility and for the establishment and operation of the Facility on the selected site so as to ensure that radioactive waste generated, possessed or controlled by the Commonwealth or a Commonwealth entity is safely and securely managed. Under s 9 of the NRWM Act, the Minister (relevantly the Minister for Resources and Northern Australia) may, in his or her absolute discretion, approve nominated land as a site for the Waste Facility. By s 14 of the NRWM Act, the Minister may, again in his or her absolute discretion, declare that a site approved under s 9 is selected as the site for the Waste Facility.

13    It was common ground that the Minister has adopted a voluntary nomination process with respect to proposed sites for the Waste Facility.

14    The effect of ss 10 and 18 of the NRWM Act is to confine the obligations of the Minister with respect to procedural fairness before approving nominated land pursuant to s 9 or declaring a site under s 14. Despite that being so, it is apparent that the Minister does engage in significant consultation with the communities in the areas in which sites are nominated.

15    In March 2017, the owners of two properties within the local government area of the Council nominated their respective properties as the site for the proposed Waste Facility. These properties are “Napandee”, nominated by JF & JA Baldock, which is approximately 25 km west of the Town of Kimba, and “Lyndhurst”, nominated by BA & MA Rayner, which is approximately 15-20 km north-east of the Town of Kimba.

16    The determination of native title in favour of the Barngarla People provided that native title in respect of the areas of both the Napandee and Lyndhurst properties has been extinguished. However, native title was determined to exist in relation to areas proximate to each property. In particular, native title was determined to exist in respect of the area of the Pinkawillinie Conservation Park which neighbours Napandee and in respect of the Lake Gilles Conservation Park which neighbours Lyndhurst.

17    After consideration of the respective nominations, the Minister initiated a process, referred to as the Phase 1 Consultation, with respect to each of the two sites, as well as a site on Wallerberdina Station at Barndioota which is in the local government area of a different Council. The Phase 1 Consultation involved the obtaining of feedback from community members and the receipt of submissions.

18    In addition, in May and June 2017 and at the request of the Minister, the Council conducted a poll of its community with a view to obtaining an indication of the level of support for the nominated sites as the Waste Facility (the 2017 Poll). The franchise for the poll comprised those eligible to vote in Council elections under s 14 of the Local Government (Elections) Act 1999 (SA) (the LGE Act). I will set out the terms of s 14 later in these reasons. Six hundred and ninety persons voted in the 2017 Poll, with 396 (57.4%) in favour of the establishment of a Waste Facility and 294 (42.6%) opposed.

19    At the conclusion of the Phase 1 Consultation, the Minister announced his decision to proceed to Phase 2. He contemplated that Phase 2 would take approximately 12 months and would include assessment of the technical suitability of the two properties and more detailed consultation with the Council’s community. The Minister also indicated that “[i]n recognition of the disruption the process may cause, a $2 million a year Community Benefit Package will be progressed for projects put forward by the community that can enhance the local social and economic prospects for the community”. Finally, the Minister said that “[t]here will be another decision at the end of Phase 2, after further technical work and community consultations have been completed, for the community to determine if they want to progress this proposal further”.

20    In about April 2018, the Council and the Minister or his Department, communicated concerning the conduct of a second ballot. Evidence concerning all of these communications was not before the Court. However, an undated letter from the Minister received by the Council on 4 May 2018 provided (relevantly):

Dear Mayor

Thank you for your letter of 11 April 2018 on (sic) setting out the Council’s view on the timing of the proposed community ballot on the National Radioactive Waste Management (NRWM) Facility (the Facility), the information required by the community prior to the vote and the financial and services benefits that should be offered to [the] community for hosting the facility.

…

In terms of the timing of the vote, I have taken Council’s advice to hold the ballot before 4 September 2018 and I am requesting the Council’s support to undertake the ballot with papers to be issued on 20 August 2018. This timing will align with the same proposal to Flinders Ranges Council and Outback Communities Authority for both ballots to occur simultaneously. I am advised that there should be a five week ballot period … [a]llowing for ballot counting this would mean that the vote results would be known by 28 September 2018.

I would also propose that the same arrangements apply as for the previous ballot at Kimba which would see it conducted by the Australian Electoral Commission (AEC) on behalf of the Kimba District Council. The feedback I have received suggest(s) this worked well and was strongly supported by the community. My department has spoken to the AEC which has indicated it is prepared to undertake the ballot on Council’s behalf.

The AEC have (sic) advised that it will need to confirm the parameters of the vote with Council, in particular the proposed boundaries, the roll to be used and the question/s to be asked. It will also want to confirm arrangements for scrutineers. While these are ultimately a matter for Council, I believe that the default position should be to use the parameters applied in the previous ballot, noting that the question will now need to be framed so that it elicits an unambiguous view from voters on their support for hosting the Facility in the Kimba community.

As you would be aware, I attended the recent Kimba Consultative Committee (KCC) where members requested an opportunity to provide their views on the approach to the community ballot. I believe that it is important that the KCC have an opportunity to provide input and I understand that the issue will be discussed at its next meeting on 17 May 2018.

I have asked the department to support the Council in working with the AEC to finalise the arrangements for the ballot, including arranging full compensation for any associated expenses.

(Emphasis added)

21    As is apparent, the Minister proposed that the second ballot be:

    conducted before 4 September 2018 with a five week voting period;

    conducted by the Australian Electoral Commission (the AEC) on behalf of the Council; and

    the subject of arrangements between the Council and the AEC but with the “default position” being the same basis on which the 2017 Poll was conducted.

The Council resolutions

22    The Council acceded to the Minister’s proposal. It passed a number of resolutions giving effect to that decision. As BDAC impugned the validity of these resolutions, I will set them out in full:

9 May 2018

Conducting of a Ballot

108.2018     …

That Council:

(a)    Accede to the request from the Minister for Resources and Northern Australia to facilitate a final ballot regarding the site selection of the [Waste Facility] in a manner consistent with the provisions of the [LGE Act], subject to all of the information specified in attachment A of the correspondence received by Council on May 4, 2018 (reference MS18-000969) being made publicly available by midday on July 23, 2018; and

(b)    Reserve the right to terminate the ballot after the above-mentioned date has passed in the event it believes the Minister has failed to provide the information specified in (a) to a level of detail that would allow the community to make an informed, considered decision in respect to the facility being constructed at the two nominated sites in Kimba.

…

CARRIED

13 June 2018

Conducting a Ballot

129.2018    That Council resolves to:

1)    Provide the Chief Executive Officer with the authority [to] work with the Australian Electoral Commission (AEC) to hold a ballot in relation to the hosting of a [Waste Facility];

2)    Provide the Chief Executive Officer with the authority to enter into and accept a contract with the AEC for the conduct of the ballot;

and;

3)    Authorise the Chief Executive Officer to provide the House of Assembly Roll and the Chief Executive Officers’ (Voters) Roll as specified under section 14 of the [LGE Act] to the AEC for the purposes of conducting the ballot.

…

CARRIED

130.2018    That Council resolves that the following question be provided to the Australian Electoral Commission for the purpose of conducting [the] ballot:

“Do you support the proposed [Waste Facility] being located at one of the nominated sites in the community of Kimba?”

…

CARRIED

27 July 2018

7. Formation of Council position on continued facilitation of ballot re: NRWMF site selection

…

180.2018    That Council continue with the community ballot for the site selection of the [Waste Facility], pursuant to resolution 108.2018.

23    Although the Council meeting minutes do not record the resolution of 27 July 2018 as being carried, it was evident that that had occurred.

24    The effect of these resolutions was, first, that the Council would retain the AEC to conduct a ballot of members of the community on the question identified in resolution 130.2018 and, secondly, that the ballot was to be conducted in accordance with the provisions of the LGE Act. For this purpose, the Chief Executive Officer (CEO) was authorised to provide the AEC with the roll of those eligible to vote in Council elections under s 14 of the LGE Act. As will become apparent, none of BDAC’s members was, by reason of being a native title holder, included on that roll.

25    It was common ground that, in passing these resolutions, the Council was exercising the power vested in it by s 36 of the LG Act, which provides (relevantly):

36—General powers and capacities

(1)    A council—

  (a)    has the legal capacity of a natural person and, in particular—

(i)    may enter into any kind of contract or arrangement; and

(ii)    may sue and be sued; and

(iii)    may act in conjunction with another council or authority, or a person; and

(b)    has the other powers and capacities conferred by or under this or another Act; and

(c)    has the power to do anything necessary, expedient or incidental to performing or discharging its functions or duties or to achieving its objectives.

…

(4)    A council must not do anything inconsistent with a law of the State or Commonwealth.

26    In addition, it was common ground that the Council was not purporting to conduct a poll pursuant to s 9 of the LGE Act, to which I will refer shortly.

27    To the above chronology of resolutions, I add that, at its meeting on 8 August 2018, the Council passed the following resolutions:

Ballot count and results

199.2018     That the Mayor and Chief Executive Officer be appointed as scrutineers for the National Radioactive Waste Management Project ballot count to be held on Monday, 24th September 2018 at 12 noon.

…

CARRIED

200.2018    That the results from the National Radioactive Waste Management Project ballot, to be counted on Monday 24th September 2018, be released as soon as a declaration of results is received from the Australian Electoral Commission in a manner to be determined by the CEO.

…

CARRIED

The present proceedings

28    The evidence indicates that the ballot was to be conducted by the AEC as a postal vote, with the voting opening on 20 August 2018 and closing on 24 September 2018. It did not indicate what the Council had done after 27 July 2018 (other than passing the two resolutions on 8 August 2018) by way of “facilitation” of the ballot. It seemed to be assumed that the Council had made the contemplated arrangements with the AEC.

29    The ballot has not proceeded. On 16 August 2018, on the application of BDAC, the Supreme Court of South Australia issued an interlocutory injunction restraining the Council, whether by itself or its agents, from posting out the ballot papers. So far as the Court is aware, that injunction remains in force.

30    Subsequently, on 21 August 2018, BDAC lodged a complaint with the Australian Human Rights Commission (AHRC) in which it contended that the exclusion of its members from the ballot was unlawful by reason of s 9 of the RD Act. The AHRC terminated the complaint on 27 September 2018 and, on 3 October 2018, BDAC commenced the present proceedings.

31    BDAC seeks declaratory relief as follows:

1.    A declaration that the passage of the resolution passed by the Respondent to provide the House of Assembly Roll and the Chief Executive Officers’ Roll as specified under section 14 of the [LGE Act] to the [AEC] for the purposes of conducting the final ballot regarding the site selection of the [Waste Facility] in the Respondent’s area constituted a contravention of, and was rendered unlawful by, subsection 9(1) of the [RD Act].

2.    A declaration that the Respondent’s facilitation of the final ballot regarding the site selection of the [Waste Facility] in the Respondent’s area constituted a contravention of, and was rendered unlawful by, subsection 9(1) of the [RD Act].

3.    A declaration that the passage of the resolution passed by the Respondent to provide the House of Assembly Roll and the Chief Executive Officers’ Roll as specified under section 14 of the [LGE Act] to the [AEC] for the purposes of conducting the Respondent’s facilitation of the final ballot regarding the site selection of the [Waste Facility] in the Respondent’s area constituted a contravention of, and was rendered unlawful by, subsection 9(1A) of the [RD Act].

4.    A declaration that the Respondent’s facilitation of the final ballot regarding the site selection of the [Waste Facility] in the Respondent’s area constituted a contravention of, and was rendered unlawful by, subsection 9(1A) of the [RD Act].

…

32    As can be seen, BDAC seeks declarations under both subs 9(1) and 9(1A) of the RD Act in respect of the passage of the resolution of the Council on 13 June 2018 to provide the House of Assembly Roll and the CEO’s Roll to the AEC and in respect of the Council’s “facilitation” of the final ballot. BDAC did not particularise the act or acts said to constitute the “facilitation” of the ballot it alleges. Given that it is pleaded as an act which is separate from the passage of the resolution, it can be inferred that it encompasses acts of a different character, presumably the actions taken to give effect to the Council’s resolutions. The submissions of counsel for BDAC tended to treat the “facilitation of the ballot” and the conduct of the ballot as synonymous.

33    Despite the Amended Originating Application confining the declaratory relief sought in respect of the Council’s resolutions to that of 13 June 2018 and to the Council’s “facilitation” of the ballot, BDAC’s Statement of Claim and its case at trial was expressed more broadly. First, it impugned the validity of the passage of all the resolutions of the Council on 9 May, 13 June and 27 July 2018 set out earlier in these reasons. The Council did not take any issue with this expansion of BDAC’s claim, and it can be addressed on that basis. Secondly, BDAC alleged that it was the holding of the ballot without the inclusion of its members which constitutes a “distinction, exclusion, restriction or preference” within the meaning of s 9(1). Although the Council submitted that this expansion of the claim was impermissible, it did not contend that it raised new issues, or that it had been prejudiced.

34    At the trial, BDAC relied on the affidavit made by its solicitor, Ms Hamdan, on 19 November 2018. The Council relied on the affidavits of three deponents: Ms Larwood, its CEO; Mr Keane, its Manager Corporate Services; and Mr Wilson, the Principal Advisor in the National Radioactive Waste Management Facility Task Force (the NRWMF Task Force) within the Department of Industry, Innovation and Science (the Department). Ms Larwood and Mr Wilson were subjected to some short cross-examination. It was not suggested, however, that the Court should not accept any aspect of their evidence, and I have considered it appropriate to rely on the evidence of all four witnesses.

35    On 12 October 2018, the Council served notices pursuant to s 78B of the Judiciary Act 1903 (Cth) on the Attorney-General for the Commonwealth, for each of the six States and for each of the two Territories. The notified constitutional issue was as follows:

The constitutional issue is whether the [LG Act] is inconsistent (within the meaning of s 109 of the Constitution) with ss 9(1), 9(1A) and 13 the [RD Act], to the extent that the statutory powers of a council, including the broad grant of power to a council in s 36 of the [LG Act], would otherwise authorise the Respondent to engage in conduct rendered ‘unlawful’ by ss 9(1), 9(1A) and 13 of the [RD Act].

36    Only the Attorney-General for the State of South Australia intervened in the proceedings. Neither BDAC nor the Council objected to that intervention.

37    It was not apparent that the proceedings did in fact raise any constitutional issue concerning the validity of provisions in the LG Act. Counsel for the Council acknowledged at the hearing that there was no constitutional issue requiring determination by the Court.

The LGE Act

38    The objects of the LGE Act as set out in s 3 include, amongst other things, provision for the conduct of periodic and other local government elections and polls, provision for the qualification of voters and the preparation and maintenance of voters rolls (s 3(a) and (b)), and the regulation of various practices associated with local government elections and polls. Elections to determine the membership of a Council under the LG Act must be held in accordance with the LGE Act (s 5).

39    Section 9 of the LGE Act authorises a Council to hold a poll on any matter within the ambit of the Council’s responsibilities, or as contemplated by the LG Act, whenever it considers that it is necessary, expedient or appropriate for a poll to be held. By s 9(5) of the LGE Act, the Returning Officer of a Council (specified in s 10(1) to be the Electoral Commissioner in South Australia) is to conduct all polls of a Council.

40    Section 14 of the LGE Act specifies the qualifications for enrolment on a voters roll under the Act. It provides (relevantly):

14—Qualifications for enrolment

(1)    Subject to this Act1—

(a)    a natural person is entitled, without application, to be enrolled on the voters roll for an area or ward if that person is enrolled as an elector for the House of Assembly in respect of a place of residence within the area or ward; and

(ab)    a natural person (not being a person referred to in paragraph (a)), who is of or above the age of majority, is entitled, on application to the chief executive officer under this section, to be enrolled on the voters roll for an area or ward if that person—

(i)    is resident at a place of residence within the area or ward and has been so resident for a continuous period of at least 1 month immediately preceding the date of the application for enrolment; or

(ii)    is a ratepayer in respect of rateable property within the area or ward and is the sole owner of that rateable property; or

(iii)    is a ratepayer in respect of rateable property within the area or ward, is the sole occupier of that rateable property, and is not a resident in respect of that rateable property; and

(b)    a body corporate is entitled, on application to the chief executive officer under this section, to be enrolled on the voters roll for an area or ward if it is a ratepayer in respect of rateable property within the area or ward and is the sole owner or sole occupier of the rateable property; and

(c)    a group of persons (consisting of natural persons, bodies corporate or partly of natural persons and partly of bodies corporate) is entitled, on application to the chief executive officer under this section, to be enrolled as a group on the voters roll for an area or ward if—

(i)    the members of the group are all ratepayers in respect of rateable property within the area or ward; and

(ii)    the members of the group are joint owners, owners in common or joint occupiers of the rateable property; and

(iii)    at least one member of the group (being a natural person of or above the age of majority or a body corporate) is not enrolled on the relevant voters roll under paragraph (a), (ab) or (b), and no member of the group is enrolled on the relevant voters roll under paragraph (a) or (ab)(i) as a resident in respect of the rateable property; and

(iv)    no member of the group who is an occupier of the rateable property but not an owner is a resident in respect of the rateable property.

…

(3a)    Except as otherwise provided in this Act, the name of a person, body corporate or group must not be added to the voters roll for an area or ward except in accordance with an application for enrolment.

 (3b)    An application for enrolment on the voters roll for an area or ward must—

(a)    be in a form approved by the returning officer; and

(b)    be signed and witnessed as required by the returning officer; and

(c)    be made to the chief executive officer of the council.

(3c)    If an application for enrolment in respect of an area or ward is received by a chief executive officer, the chief executive officer must enrol the applicant unless—

(a)    the chief executive officer believes the applicant is not entitled to be enrolled; or

  (b)    —

(i)    in the case of an application made in respect of an entitlement under subsection (1)(ab)—the natural person is already on the voters roll for the area or ward by virtue of another entitlement to vote; or

(ii)    in the case of an application made in respect of an entitlement under subsection (1)(b) or (1)(c)—the designated person of the body corporate or group is already on the voters roll for the area or ward (whether as a designated person or by virtue of another entitlement to vote).

(6)    The chief executive officer may determine the name of a group for the purposes of the voters roll.

  (7)    The name of a group must include the word “Group” at the end.

…

Note—

1    Subsection (1) does not apply to the Crown (see section 302 of the Local Government Act 1999).

41    Section 15(1) of the LGE Act provides that the Chief Executive Officer of a Council is responsible for the maintenance of a voters roll for the Council area. Section 15(2) specifies the information to be included on the voters roll and, in the case of a body corporate or a group, requires that there be details of a “designated person” for the body corporate or group:

(2)    Subject to this section, the voters roll must set out in relation to each person, body corporate or group enrolled—

(a)    in the case of a natural person—the full name of the person and the address of the person's place of residence; and

(b)    in the case of a body corporate or group—the full name of the body corporate or group and the full name, residential address and date of birth of the designated person for the body corporate or group; and

(c)    the address of the place of residence or rateable property (as the case may be) by virtue of which the person, body corporate or group is entitled to be enrolled; and

…

42    Section 16(1) of the LGE Act provides that, subject to some qualifications which are not presently material, “a natural person who has his or her name on the voters roll used for an election or poll as an elector in his or her own right is entitled to vote at that election or poll”. In relation to bodies corporate and groups, s 16(2) provides that it is the “designated person” on the voters roll for the body corporate or group who has the entitlement to vote.

43    The scheme contained within s 14 of the LGE Act with respect to the eligibility for enrolment on the voters roll is reasonably clear. It makes an overall distinction between residents, on the one hand, and non-resident ratepayers, on the other.

44    Natural persons who are adults who reside in the local government area may be enrolled on the voters roll as of right (irrespective of whether they are ratepayers) if they are enrolled as electors for the House of Assembly in respect of a place of residence within the area (s 14(1)(a)), and, even if not so enrolled, on application to the Chief Executive Officer of the Council providing that they have resided within the Council area for at least one month immediately preceding their application (s 14(1)(ab)(i)).

45    The eligibility of all other natural persons requires that they be above the age of majority, be “a ratepayer in respect of rateable property” within the area, and be the sole owner or sole occupier of that property. Even then, they become entitled to be enrolled on the voters roll only on application to the Chief Executive Officer of the Council (s 14(1)(ab)(ii) and (iii)).

46    A body corporate is entitled to be enrolled on the voters roll only if it is “a ratepayer in respect of rateable property” within the area, the sole owner or sole occupier of the rateable property, and has made application to the Chief Executive Officer (s 14(1)(b)).

47    Finally, a group of persons satisfying each of the requirements specified in s 14(1)(c), is entitled, on application to the Chief Executive Officer of the Council, to be enrolled as a group on the voters roll.

48    Each person, each body corporate and each group has only one vote. This is so irrespective of the number of persons in the body corporate or group and irrespective of the number of rateable properties owned by the person.

49    It was common ground that the BDAC itself is not entitled to be enrolled on the voters roll under s 14. It is not “a ratepayer in respect of rateable property” within the Council area, let alone “the sole owner or sole occupier of the rateable property”. Nor has the BDAC made application to the CEO to be enrolled on the voters roll.

50    It was also common ground that none of the 211 members of the BDAC was, by virtue of being a native title holder, entitled to be enrolled on the voters roll. A member could be so entitled only if he or she could satisfy one or other of the criteria for enrolment by a natural person specified in s 14.

The Chief Executive Officer’s Roll

51    Ms Larwood has maintained a roll of persons entitled to vote in elections of the Council, as required by s 15 of the LGE Act. She deposed, and I accept, that at 31 May 2018, there were 801 persons enrolled on the voters roll, comprised of:

(a)    seven hundred and forty eight residents on the House of Assembly Roll as being resident within the Council’s local government area (enrolled pursuant to s 14(1)(a) of the LGE Act);

(b)    seventeen residents who were not on the House of Assembly Roll but who had lived in the Council’s local government area for one month before making application to the CEO (enrolled pursuant to s 14(1)(ab)(i) of the LGE Act);

(c)    twenty four ratepayers (not being residents) who were the sole owner of rateable property within the Council’s local government area and who had applied to the CEO (enrolled pursuant to s 14(1)(ab)(ii) of the LGE Act); and

(d)    twelve groups of persons (joint owners or occupiers of property) who had made an application to the CEO to be registered as a group (enrolled pursuant to s 14(1)(c) of the LGE Act).

BDAC’s position

52    BDAC seeks to have its members permitted to vote in the ballot. Commencing on 30 May 2018, it made a number of representations to the Council to this effect, although at the same time indicating that it was prepared to arrange a ballot of its members in the event that they could not participate in the Council’s ballot. In its representations, BDAC emphasised that its members hold native title rights and interests in numerous parcels of land within the Council area, including areas near the two nominated sites. It also emphasised that the term “owner” which appears frequently in the LG Act is defined in s 4(1) of that Act to include a person who holds native title in the land.

53    By a letter to the Council of 30 May 2018, BDAC submitted that its members should be entered on the Council’s own voter roll pursuant to ss 14 and 15 of the LGE Act or, alternatively, that the Council prepare a separate and specific roll of voters for the purpose of the ballot which included its members.

54    The Council responded to BDAC’s letter of 30 May 2018 by a letter from Ms Larwood on 31 May 2018. The Council acknowledged that BDAC’s members hold native title in respect of several parcels of land within its local government area and, further, that those native title rights and interests satisfied the definition of “owner” in the LG Act. Ms Larwood said, however, that this ownership did not entitle BDAC’s members to be included on the voters roll as the land was “non-rateable”, and the native title holders were not ratepayers. Accordingly, they did not meet the enrolment criteria contained in s 14(1)(ab), (b) or (c) of the LGE Act. Ms Larwood accepted that some BDAC members may be eligible to vote in the ballot pursuant to s 14(1)(a) of the LGE Act.

55    By letter dated 12 June 2018, BDAC requested the Council to reconsider its position. BDAC indicated that it could, as an alternative, arrange for the conduct of a ballot of its own members, with the results being provided to the Council. By its response of 15 June 2018, the Council maintained its position that BDAC members were not eligible for inclusion on the voters roll by virtue of being native title holders of parcels of land within its local government area. It confirmed that the Council would conduct the ballot in accordance with the provisions of the LGE Act, including the enrolment qualifications contained in s 14.

56    On 25 June 2018, BDAC’s lawyers sent a letter to Mr Wilson at the NRWMF Task Force (not copied to the Council) in which they said:

[7]    Given that the Council will not involve all of the BDAC members in their ballot, we seek that the Department works with BDAC to arrange a ballot of BDAC members in the coming months, similar to that occurring for Council electors. These results would then be integrated into the Council’s ballot, allowing for a complete assessment of the community’s views regarding a NRWMF on either of the proposed sites.

[8]    It is BDAC’s concern that any ballot which does not include its members would exclude a significant property holder for the area (and the diminution of the relevant property rights are of particular concern given that they are property rights conferred on the basis of race; the rights are conferred on Barngarla as Aboriginal Native Title Holders) and therefore would throw into doubt the validity of the outcome of any ballot held to gauge community views on the proposed in NRWMF.

[9]    We do not understand our client’s position to be at great odds with that of the Department. We understand that the Department wants to expand the ballot to be as broad as possible so as to avoid this particular problem, namely a minority interest group being excluded and therefore challenging the political validity of any ballot outcome.

[10]    Accordingly, BDAC has already made enquiries with commercial election companies regarding the conduct of a postal ballot with an independent returning officer. We seek the Department’s agreement either to arrange a ballot for BDAC members or otherwise to provide funding for an independent commercial election company to conduct a ballot of BDAC members. As discussed above, these results would then be tallied with the outcome of the Council’s more limited vote.

[11]    To be clear, regardless of the Department’s position, BDAC intends to proceed with a ballot and will provide the result to the Department and to the Australian Electoral Commission, who are conducting the Council’s more limited ballot. (The Australian Electoral Commission might then determine to consolidate the results into one composite result.).

57    By an email of 3 July 2018 which followed some telephone discussions, Mr Wilson did not respond directly to the request of BDAC’s solicitors but did say:

In addition to [the conduct of the community ballot] we want to specifically seek the views/position of stakeholder groups, particularly the Barngarla as overall support for the project is not judged solely on the results of the local community ballot. As we have consistently indicated the Minister will take into account all feedback and the views [of] specific stakeholder groups in reaching a views (sic) as to whether sufficient support exists. He is particularly interested in the views of the traditional owners.

I asked what processes the Barngarla used to come to common positions on policy positions such as this. You indicated that this included General or Special Meetings and voting. I indicated that we would be happy to consider supporting the Barngarla to do this and that this was something we could talk further on.

We have previously supported the Adnyamathanha in having special AGMs to consider their position on the project and would be happy to consider doing something similar for the Barngarla.

There should be no suggestion that the department is seeking to deny the Barngarla people in having input to this important discussion. We are happy to meet at any point to discuss how that might be best accomplished.

58    By a separate letter and email of 3 July 2018 (not copied to the Council), the solicitors for BDAC repeated the request for the Department to support the direct participation of BDAC members in the ballot, or for the Department to support the holding of a separate ballot of BDAC members. The solicitors said that, in the event that the Department did not support a ballot, the Barngarla would “look to engage an independent commercial company to conduct the ballot and then seek for the results of that ballot to be consolidated with the results of the ballot conducted by the AEC”.

59    By letter dated 17 July 2018, BDAC informed the Council that it had not received a favourable response from the Department concerning a ballot of its members. It continued:

Accordingly, we have also approached commercial election providers and have received several quotes for a postal ballot of BDAC members. Regardless of whether the Department will assist us, we will be arranging a postal ballot of BDAC members. We will seek that the results of that ballot are incorporated with the results of the Council’s ballot (we envisage that is an exercise for the Australian Electoral Commission (AEC) or the Department, rather than the Council), so that the Minister can have regard to our members’ views as much as any other member of the community.

60    At a special meeting on 27 July 2018, the Council considered representations from representatives of BDAC and from its legal advisors. The position paper which the representatives presented to the meeting indicated that they would not be addressing the question of whether the Waste Facility should be situated at one of the nominated sites near Kimba, nor the issue concerning the inclusion/exclusion of BDAC members in/from the proposed ballot. Instead, the position paper indicated a different concern about the proposed ballot by saying that the purpose of the deputation was:

[T]o make clear to Council that BDAC considers that the ballot should not proceed, because certain promised community information from the Department of Industry, Innovation and Science (“DIIS”) does not reach a standard which would allow the community to make an informed, considered decision in respect to the facility being constructed at the two nominated sites in Kimba.

61    The position paper also confirmed that BDAC’s position was that, if there were no alternative options available by which BDAC members could be included in the ballot, then BDAC would conduct its own concurrent and identical ballot with the intention that two results be consolidated “to provide a proper reflection of the outcome”.

62    At the conclusion of the special meeting on 27 July 2018, the Council resolved to continue with the ballot.

63    On 12 August 2018, Mr Wilson from the NRWMF Task Force and other Departmental staff met with the Board of BDAC and its members. During the course of that meeting, Mr Wilson offered BDAC up to $4,500 to fund a meeting of its members at which they could receive information about the proposed Waste Facility and express their views about it. As an alternative, Mr Wilson offered to fund the conduct of a ballot arranged by BDAC.

64    Finally, in a telephone conversation on 14 August 2018, Mr Alexandrides from the firm of lawyers acting for BDAC, informed Mr Keane, the Manager Corporate Services at the Council, that BDAC would be conducting its own ballot and sought a copy of the ballot paper and explanatory notes being issued by the AEC in order that the BDAC ballot paper could be similar in form.

65    BDAC did not proceed with its own ballot. Instead, on 16 August 2018, it obtained the injunction from the Supreme Court of South Australia to which I referred earlier.

The RD Act: provisions and principles

66    As already indicated, BDAC alleges that the Council’s resolutions and the proposed ballot contravene both subs (1) and subs (1A) of s 9 of the RD Act. That is, BDAC alleges both direct and indirect discrimination.

67    Section 9 provides (relevantly):

9 Racial discrimination to be unlawful

(1)    It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A)    Where:

(a)    a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b)    the other person does not or cannot comply with the term, condition or requirement; and

(c)    the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

 (2)    A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

…

68    The Convention to which subs (2) refers is the International Convention on the Elimination of all Forms of Racial Discrimination 1966, done at New York on 7 March 1966 (the Convention). Relevantly for the purposes of this litigation, Art 5 provides:

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all of its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

…

(c)    Political rights, in particular the rights to participate in elections – to vote and to stand for election – on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

…

69    The elements of a contravention of s 9(1) of the RD Act for the present purposes are:

(a)    the doing of an “act”;

(b)    which involves a distinction, exclusion, restriction or preference;

(c)    based on (relevantly) “race” or “ethnic origin”;

(d)    which has the purpose or effect;

(e)    of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

70    Although the elements of a contravention of s 9 may be appropriately identified in this way, heed should be given to the caution sounded by Allsop J, as his Honour then was, in Baird v Queensland [2006] FCAFC 162; (2006) 156 FCR 451 at [37] that s 9(1) is “one whole section and not a sum of finite elements” and that the provision “is to be interpreted in a holistic way rather than by reference to disembodied individual elements”. The question ultimately is whether the impugned act involved a race-based distinction with one or other of the identified purposes or effects.

71    Some matters of approach to the construction and application of s 9(1) have been settled in the authorities:

(a)    the provision should be interpreted broadly and beneficially in accordance with the fundamental purpose of the Convention to which it gives effect: Baird at [60];

(b)    at its heart, the expression “any act involving a distinction, exclusion, restriction or preference” connotes a difference in treatment based on one or more of the stated characteristics: Gerhardy v Brown [1985] HCA 11, (1985) 159 CLR 70 at 118, 127-8 (Brennan J); Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [38] and, on appeal [2001] FCA 123, (2001) 105 FCR 56 at [29];

(c)    although s 9(1) involves inherently elements of comparison, it does not require the identification of a particular comparator: Baird at [63]; Qantas Airways Limited v Gama [2008] FCAFC 69, (2008) 167 FCR 537 at [76]; Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20, (2008) 235 CLR 232 at [7]; Wotton v State of Queensland (No 5) [2016] FCA 1457 at [559]-[560];

(d)    a motive or intention to discriminate is not an element of a contravention; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56, (1989) 168 CLR 165 at 176; Waters v Public Transport Corporation [1991] HCA 49, (1991) 173 CLR 349 at 360; Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 at 33-34, 40-41, although their presence may be evidence that the conduct was engaged in for the proscribed purpose;

(e)    the operation of s 9 is not confined to acts undertaken pursuant to an obligation to do those acts: Baird at [62], Shurat HaDin, Israel Law Centre v Lynch (No 2) [2014] FCA 413 at [91];

(f)    it is the act involving the distinction which must be based on race: Baird at [71];

(g)    the term “based on” does not connote a relationship of cause and effect, whether in a “but for” or in any other sense. It signifies that the discrimination must be “on” racial grounds: Gerhardy v Brown at 81 (Gibbs CJ). In Macedonian Teachers’ Association at 27, Weinberg J said:

[The] expression [“based on”] does not, of itself, suggest a relationship of cause and effect. It suggests rather a relationship of a different and broader kind. The links between the elements connected by this expression must, no doubt, be real and tangible, but not necessarily causal in nature. To ask whether the manner in which the complainant was treated is in any way referable to his race, colour, descent or national or ethnic origin is not necessarily to ask whether these characteristics “caused” the impugned conduct.

This reasoning was endorsed on appeal: Victoria v Macedonian Teachers’ Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 at [8] and by the Full Court in Bropho v Western Australia [2008] FCAFC 100, (2008) 169 FCR 59 at [67]-[68]. It means that there must be an examination of the actual basis for the conduct, by considering the matters on which the conduct did turn: Wotton at [551]; and

(h)    there must be a close relationship between the designated characteristic and impugned conduct: Macedonian Teachers’ Association at 33.

BDAC’s contentions

72    At the hearing in this Court, BDAC emphasised that the Council is conducting the ballot pursuant to the powers vested in it by s 36 of the LG Act, and that it is not bound to comply, in respect of the ballot, with ss 14 to 16 of the LGE Act. This means that it was open to the Council, if it wished to do so, to determine a franchise for the ballot which is more expansive than that contained in ss 14 to 16 of the LGE Act.

73    Counsel for BDAC summarised BDAC’s claims that the passage of the resolutions of the Council and the proposed ballot were unlawful as follows:

(a)    the Council has made the decision as to the manner in which it would conduct the ballot, namely, in a manner consistent with the provisions of the LGE Act. It had not been bound to conduct the ballot in that manner and, in particular, to use the s 14(1) franchise. It is not purporting to exercise the power to conduct a poll under s 9 of the LGE Act and so was not subject to any statutory obligation to comply with s 14. It could have decided on a more extensive franchise. Its decision had been voluntary;

(b)    the decision to conduct the ballot in a manner consistent with the LGE Act means that native title holders are not eligible to take part in the ballot;

(c)    the conduct of the ballot in this manner contravenes s 9(1) of the RD Act because:

(i)    their exclusion from the ballot is based on the Aboriginality of its members;

(ii)    it would have the effect of impairing human rights or fundamental freedoms of those members, in particular, their political rights to participate in the ballot and the right to enjoy the land within the local government area of the Council over which they hold native title rights; and

(d)    alternatively, the conduct of the ballot in that manner would contravene s 9(1A) of the RD Act because it would require BDAC’s members, if they wished to vote in the ballot, to meet the requirements of s 14 of the LGE Act when they are not able to do so, and that requirement has the effect of interfering with the recognition, enjoyment or exercise, on an equal footing, with others of the same human rights and fundamental freedoms.

Is there a contravention of s 9(1)?

The identity of BDAC’s members

74    The rule book of BDAC was not in evidence and the Court did not otherwise have evidence of the eligibility criteria for membership of BDAC. Under the provisions of the CATSI Act, the membership of an entity such as BDAC is not necessarily confined to indigenous persons (see ss 29-10, 141-1 and 141-25). This raised the prospect that BDAC may have been seeking participation in the ballot by persons who are not indigenous and not native title holders.

75    However, issues concerning the composition of BDAC’s membership in this respect do not arise because the Council accepted that the members of BDAC are people who belong to the Aboriginal “race” and/or are of Aboriginal “ethnic origin” within the meaning of those terms in s 9(1) of the RD Act. It is convenient to use the term “Aboriginality” to encompass both of these characteristics. As to Aboriginal people as a whole comprising a race, see Eatock v Bolt [2011] FCA 1103; (2011) 197 FCR 261 at [312]-[314].

76    I did not understand the Council to dispute that BDAC’s members are also native title holders pursuant to the determinations made by the Court in Croft (No 2) and in Croft (No 3).

Had the Council engaged in “acts” to which s 9(1) applies?

77    As already noted, the acts which BDAC contends contravene s 9(1) of the RD Act are:

(a)    the Council’s passage of the resolutions relating to the ballot; and

(b)    the Council’s “facilitation” of the ballot.

78    In its submissions, BDAC sought to enlarge the scope of the pleaded acts by reference to s 3(3) of the RD Act, which provides:

(3)    For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure.

79    BDAC submitted that s 3(3) meant that the Council’s failure to include its members in the ballot was an act encompassed by s 9(1). As this was not part of the conduct pleaded by BDAC, I do not consider it appropriate to have regard to this contention. I doubt, however, that this has any practical effect because BDAC’s invocation of s 3(3) did not appear to add in a material way to the “acts” on which it did rely.

80    The Council submitted that its passage of the resolutions impugned by BDAC did not constitute “acts” of the kind to which s 9(1) refers. It made this submission by reference to the reasons of Gageler J in Lyons v The State of Queensland [2016] HCA 38; (2016) 259 CLR 518. That case concerned the question of whether the exclusion of a profoundly deaf person from jury service infringed a prohibition imposed by the Anti-Discrimination Act 1991 (Qld) on discrimination on the basis of specified attributes which included “impairment”. Section 4(3)(l) of the Jury Act 1995 (Qld) provided that a person was not eligible for jury service if the person “has a physical or mental disability that makes the person incapable of effectively performing the functions of a juror”. In his separate judgment, Gageler J said:

[52]    [T]o act in the administration of the Jury Act solely to give effect to the definition in s 4(3)(l) is not to discriminate against the person to whom the definition applies either by way of direct discrimination or by way of indirect discrimination. Leaving the satisfaction of other elements of those two types of discrimination entirely to one side, the act cannot be direct discrimination because the sole reason for it is to give effect to the definition and the act cannot be indirect discrimination because (assuming the act to involve the imposition of a term) a term that does no more than give effect to the definition cannot be unreasonable.

(Emphasis added)

81    The Council’s submission, as I understood it, was that in resolving to conduct the ballot “in a manner consistent with the provisions of the [LGE Act]”, it had been doing no more than applying self-executing provisions in the LGE Act and, in particular, s 14(1) similar to the manner stated by Gageler J.

82    The difficulty for that submission is that the Council’s resolution that the ballot should be conducted “in a manner consistent with the provisions of the LGE Act” involved an exercise of a discretion on its part. As previously indicated, the Council had not been bound to conduct the ballot in accordance with the LGE Act and, in particular, had not been bound to adopt the s 14(1) franchise for the purpose. It made a voluntary decision to do so. That decision involved implicitly a determination of the composition of the franchise. Accordingly, the Council’s resolutions were not the mere giving effect to a self-executing statutory provision in the manner to which Gageler J referred in Lyons.

Did the Council’s acts involve a distinction based on Aboriginality?

83    In the circumstances set out above, the question of whether s 9(1) of the RD Act is contravened turns, first, on whether the resolutions of the Council to conduct the ballot in accordance with the provisions in the LGE Act were “based on” the Aboriginality of BDAC’s members. The same question arises with respect to the Council’s “facilitation” of the conduct of the ballot itself.

84    If these questions are resolved in the affirmative, the question is then whether the resolutions and the facilitation had the effect of impairing the two human rights or fundamental freedoms claimed by BDAC, namely:

(a)    their political rights, particularly, the right to participate in the ballot; and

(b)    the right to enjoy the land over which they hold native title rights within the Council’s local government area.

85    In my opinion, it should be accepted that the non-inclusion of the members of BDAC in the franchise for the ballot involved a distinction or exclusion. They (and others who did not meet the requirements for the franchise) were thereby precluded from participating in the ballot being arranged by the Council for the purposes of ascertaining the views of the Kimba “community”, using that term in an extended sense. I did not understand the Council to contend to the contrary.

86    However, accepting that that is so, BDAC does not establish that the exclusion was “based on” the Aboriginality of its members. In particular, it has not established that the decision concerning the franchise for the ballot was referrable to the Aboriginality of its members. A number of considerations indicate that that is so.

87    First, BDAC did not point to any matter indicating that the Council’s resolutions or its “facilitation” of the ballot were referrable to the Aboriginality of its members. Instead, BDAC’s submissions focussed on the outcome of the resolutions, namely, that its members are in fact excluded from the ballot. As already seen, the Council’s adoption of the s 14(1) franchise for the ballot means that that exclusion arises not by reason of the Aboriginality of BDAC’s members, but by reason of their place of residence and the fact that they are not ratepayers. Accordingly, it is the resolution to adopt the s 14(1) franchise which is the critical matter.

88    Ms Larwood deposed that the matters on which the Council relied in passing the resolutions were:

(a)    the LGE Act provides a defined set of rules for the conduct of elections and polls;

(b)    they are a process with which the Council and the local community are familiar, by reason of their previous use; and

(c)    they provide a high level of transparency and accountability, as well as independence from the Council.

89    Ms Larwood’s evidence that these were the matters on which the Council relied was not contested and there is no reason to suppose that they were not the matters on which the Council’s decision turned. On the contrary, a number of considerations indicate that they were sensible matters for the Council to take into account.

90    None of the matters identified by Ms Larwood is referrable to the Aboriginality of BDAC’s members.

91    Ms Larwood said, and I accept, that when the Council originally resolved on 9 May 2018 to use the LGE Act provisions for the ballot, there had been no discussion about including native title holders at all. It was a matter to which the Council had not adverted. BDAC accepted that it was on 9 May 2018 when the “effective” decision had been made.

92    Ms Larwood deposed that following its receipt of the letter from BDAC of 30 May 2018, the Council had considered it with reference to the criteria in s 14 of the LGE Act and had obtained legal advice to the effect that native title holders were not within those criteria unless they were also a resident or ratepayer. Following the receipt of BDAC’s letter of 12 June 2018, the Council again considered the position of native title holders in relation to the ballot. Ms Larwood said in respect of the Council’s decision:

[T]he decision wasn’t taken lightly. It was investigated properly. There was a lot of issues that would arise that if – if the Barngarla Determination Aboriginal Corporation – we went outside of the guidelines to allow them to vote, it then opened up, should we be letting all owners who are non-ratepayers have a vote; should we be letting those that occupy businesses or premises in Kimba but aren’t actually eligible to vote because they’re not a ratepayer to vote. It also then brought about who would vote, as in, should all members vote or, as owners who are ratepayers, they only get one vote. So it brought that into question. It also brings into question along the lines of, people that may shop, work, socialise in Kimba but don’t actually own land in Kimba don’t get a vote. So there’s a whole – there was a whole consideration given to that. I don’t want to make it seem like we just brushed it off, because there was some intense discussion about it. And we did look at other – other concerns that would bring into it if we did go down that path.

93    This evidence was not challenged and I accept it. It indicates that the Council’s continuing decision that BDAC’s members should not be included in the ballot was not made because of their Aboriginality, but as part of a more general discussion about whether the s 14(1) franchise should be expanded for the purposes of the ballot. The Council had to make a decision as to the categories of persons who constituted the Kimba “community” for the purposes of the ballot. It appreciated that once it departed from the s 14(1) franchise, a number of difficulties and uncertainties arose. It is understandable that the Council sought to avoid those difficulties by adhering to the provisions with which it and the community were familiar, which had an objective existence, and which had a high level of transparency and independence from the Council.

94    The Council did not initiate the proposal to use the s 14 franchise. It was the Minister who, while acknowledging the Council’s discretion in the matter, had suggested that the “default position” should be the “parameters” used in the 2017 Poll. In acceding to that suggestion, the Council was acting consistently with its previous position, and there has not been any suggestion that that position had been racially based. In saying that, I am not overlooking that the Croft (No 2) determination had not yet come into effect when the 2017 Poll was conducted nor the Minister’s suggestion made.

95    A consideration related to the matters to which Ms Larwood deposed is the confidence which the Council could have in the “integrity” of the composition of the franchise. In adopting the s 14(1) franchise, the Council had some assurance as to that composition. It could assume that those who were on the House of Assembly roll had satisfied the eligibility and the procedural requirements for enrolment contained in ss 32 and 32B of the Electoral Act 1985 (SA). It could assume that those on the voters roll prepared by the CEO pursuant to ss 14 and 15 of the LGE Act had satisfied the requirements of those provisions. But the Council could be less certain of the membership of BDAC. It had not been provided with the eligibility requirements for membership (see ss 141-1 and 141-25 of the CATSI Act) and it did not have knowledge of the way in which BDAC did in practice maintain its register of members.

96    Moreover, there is at least one significant disconformity between potential eligibility for membership of BDAC and the s 14(1) franchise. Sections 29-10 and 141-15 of the CATSI Act provide that persons who are at least 15 years old satisfy the age of membership requirement for the purposes of that Act. Section 14(1) of the LGE Act, on the other hand, requires that persons have reached the age of majority in order to be eligible.

97    Ms Larwood did not depose that the Council had adverted to these matters but their existence does indicate that the Council’s desire to use a voting system with which it and its community were familiar and which had a high level of transparency and accountability has an objective basis.

98    The LGE Act does not include native title holders in the s 14(1) franchise even though such persons are, for the purposes of the LG Act, within the definition of an “owner” of land. BDAC’s submissions did not indicate the significance, if any, to be attached to the circumstance that native title holders are within the LG Act definition of “owner”. The fact of the matter is that there are various categories of persons, apart from native title holders, who are owners but who do not come within the s 14(1) franchise.

99    Section 14 of the LGE Act can be understood as reflecting a policy judgment made by the South Australian Parliament as to those persons appropriate to participate in the democratic election of councillors and therefore “to have a say” in the affairs of a council and of the community for which it is responsible. It was not suggested that s 14 itself offends the provisions in the RD Act. It is true that the Council could have adopted a different franchise from that contained in ss 14(1) and 16 while otherwise using the provisions in the LGE Act. But the fact that the Council chose to use the same franchise as it is required by law to use for elections and for polls under s 9 (which has no reference to Aboriginality) points against the exclusion of the BDAC members having been attributable to their Aboriginality, or account having been taken in some way of that Aboriginality.

100    The Council’s adoption of the s 14(1) franchise did not involve any differential treatment of the non-resident native title holders, on the one hand, and other non-residents who have a property interest in the Council area but are not ratepayers in respect of that interest. BDAC’s members are on the “same footing” as such persons.

101    The selection of a franchise for a ballot, unless it is made open to anyone and everyone, necessarily involves the exclusion of those not meeting the criteria for the franchise. It is an unavoidable consequence. The Council’s selection of the s 14(1) franchise necessarily excluded a number of people from the ballot, including residents and occupiers of premises within its Council area. These included:

(a)    all persons under the age of 18 years, irrespective of the length of their residence in the Council area;

(b)    persons resident in the Council area who were not enrolled as electors for the House of Assembly in respect of a place of residence in the Council area and who had not made application to the CEO to be enrolled on the voters roll;

(c)    persons who were ratepayers in respect of rateable property within the Council area who had not made application to the CEO to be enrolled; and

(d)    members of a body corporate or a group of persons, other than the “designated person”, who satisfied the requirements of s 14(1)(c).

102    Ms Larwood’s affidavit indicated that these are not merely hypothetical examples. She noted, for example, that there are approximately 18 businesses occupying properties within the Council area whose operators are not eligible to be on the voters roll because they are not ratepayers, as well as a number of entities who are exempt from paying rates.

103    Of course, the fact that others were excluded from the ballot by reference to different considerations does not, of itself, mean that the exclusion of the members of BDAC was not referrable to their Aboriginality. But the fact that persons were excluded on the basis of the same criteria as applied to BDAC members and which had nothing to do with Aboriginality, does point against the exclusion of BDAC’s members having been referrable to their Aboriginality.

104    The native title on which BDAC relies for the interest of its members is a form of group interest. Native title is a communal right and native title rights and interests are communal in nature: Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 63 (Brennan J), at 110 (Deane and Gaudron JJ) and at 178-9 (Toohey J). See also Griffiths v Northern Territory of Australia [2016] FCA 900 at [219]. Accordingly, the position of BDAC’s members in relation to the ballot is in some respects similar to that of members of a group to which s 14(1)(c) of the LGE Act applies.

105    As the Council submitted, BDAC seeks that each of its members have a vote in respect of their joint interest in the native title land. This could amount to 211 votes. In contrast, all other joint owners have only one vote. Accordingly, putting to one side the fact that the native title holders of BDAC are not ratepayers, it is apparent that BDAC seeks to have its members treated differently from the members of other groups and, in fact, for them to have greater rights. The potential for this to be the case provides a further objective justification for the Council’s desire to have the ballot conducted in accordance with a known and accepted set of rules to which is attached a high level of transparency and accountability.

106    The Solicitor-General for the State of South Australia submitted that, by seeking to have each of its members entitled to an individual vote in a context in which members of other groups did not have such an entitlement, BDAC was seeking a form of special measure of the kind to which s 8 of the RD Act refers. That is to say, BDAC seeks by these proceedings a result which would mean that rights to vote in the ballot would vary according to racial considerations. It is by no means clear that a decision not to make a special measure could of itself infringe s 9(1) of the RD Act. This is a large question which, in the view I take, it is not necessary to address for the purposes of resolving the present application.

107    Finally, it is pertinent that BDAC members who are within the s 14 franchise are eligible to vote. As noted earlier, it seems that there may not be any BDAC members in this category. Nevertheless, the fact that BDAC members who are within the s 14 criteria are entitled to vote militates against a conclusion that their exclusion is referrable to their Aboriginality.

108    I also record that there is no evidence that the Council had any knowledge at all of the identities or addresses of BDAC members at the time it passed the resolutions. Again, that is not decisive because, as indicated earlier, motive and intention are not necessary elements of a contravention of s 9(1). Nevertheless, I consider that this is another matter militating against a conclusion that the exclusion of BDAC members is attributable to their Aboriginality.

109    For these reasons, I consider that BDAC does not establish that either of the “acts” on which it relies contravenes s 9(1) of the RD Act.

Human rights and fundamental freedoms

110    Both the Council and the Solicitor-General for the State of South Australia contested BDAC’s submission that the exclusion of its members from the ballot impaired a human right or fundamental freedom of those members. Given that I am firmly of the view that BDAC has not established any act of the Council referrable to the Aboriginality of its members, it is not necessary to address the parties’ submissions on these issues.

Is there a contravention of s 9(1A)?

111    BDAC’s second claim is that the Council’s passage of the resolutions and its “facilitation” of the ballot contravened s 9(1A) of the RD Act.

112    The terms of s 9(1A) are set out earlier in these reasons. This provision proscribes acts of indirect discrimination referrable (relevantly) to a person’s Aboriginality.

113    Strictly speaking, the claimed contravention of s 9(1A) should have been pleaded in the alternative, as it has been said that the forms of direct and indirect discrimination to which ss 9(1) and 9(1A) refer are mutually exclusive: Australian Medical Council v Wilson (1996) 68 FCR 46 at 55, 74; Banovic at 175, 184; Waters v PTC at 395, 402; and Bropho v State of Western Australia [2007] FCA 519 at [289]. Counsel for BDAC acknowledged that this was so. Although the Council raised this point, it did not contend that the resolution of the case turned on it.

114    The elements of a s 9(1A) contravention are (relevantly):

(a)    a person requiring another to comply with a term, condition or requirement;

(b)    the term, condition or requirement is not reasonable having regard to the circumstances of the case;

(c)    the other person does not and cannot comply with the term, condition or requirement; and

(d)    the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by (relevantly) Aboriginal persons of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

115    When those conditions exist, the act of requiring the compliance is to be treated, for the purposes of Pt 2 of the RD Act, as an act involving a distinction based on, or an act done by reason of (relevantly), the person’s Aboriginality.

116    It was common ground that the requirement to be considered for the purposes of s 9(1A) presently is the requirement that, in order for BDAC’s members to vote in the ballot, they must meet the requirements of s 14 of the LGE Act. The Council accepted that BDAC’s members are unable to satisfy those requirements.

117    The Council contended that s 9(1A) was not contravened by its passage of the resolutions or by its “facilitation” of the ballot by reason of two matters: first, the selection of the s 14(1) franchise for the ballot is reasonable and, secondly, the requirement that persons satisfy the criteria for the s 14(1) franchise does not in any event have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of Aboriginal persons of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Reasonableness

118    The requirement of reasonableness has been the subject of considerable judicial consideration. It is established that the reasonableness or otherwise of a requirement is a question of fact to be determined by a weighing of all relevant factors: Waters v PTC at 395; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 (The Extended Leave Case) at 84.

119    In Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263, Bowen CJ and Gummow J endorsed an approach which held that “the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience”. Their Honours continued:

The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.

120    It is BDAC which has the onus of establishing that the requirement in this case is not reasonable.

121    The authorities concerning the application of s 9(1A) and its counterparts indicate that, depending on the circumstances, a diverse range of matters may bear upon the reasonableness of a requirement. These include:

(a)    whether the requirement is appropriate and adapted to the performance of the activity or to the completion of the transaction in question: Waters v PTC at 378. In The Extended Leave Case, Davies J said, at 89, that “if a requirement or condition is appropriate and adapted to the function which the requirement or condition is to perform, then the requirement or condition is well on the way to being a reasonable one, although all other relevant factors … must be taken into account”;

(b)    whether or not the purpose for which the requirement is imposed could be achieved without the imposition of the discriminatory requirement, or by the imposition of a requirement which is less discriminatory in its impact: Waters v PTC at 363-4, 378, 395;

(c)    whether the point of distinction adopted has a logical and understandable basis, even if reasonable minds may differ on the question: Commonwealth of Australia v Human Rights and Equal Opportunity Commission (Dopking No 2) (1995) 63 FCR 74 at 86-7. In The Extended Leave Case , Sackville J noted that there may be limits on the significance which can be attached to the distinction being logical and understandable because, while it may be logical and understandable by reference to the assumptions upon which it was based, the distinction may nevertheless overlook or discount the discriminatory impact of the decision, at 112;

(d)    effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or of substituting another requirement: Waters v PTC at 378;

(e)    the question of reasonableness is not to be determined by enquiring whether the term, condition or requirement was the “correct one” or by considering whether the respondent could have made a “better” or more informed decision. Instead, the question is whether the requirement was not reasonable having regard to the circumstances of the case: The Extended Leave Case at 112-3;

(f)    the reasonableness or otherwise of a requirement is not to be determined only by balancing the underlying reasons for the requirement against the nature and effect of the discriminatory effect. All the circumstances have to be taken into account: The Extended Leave Case at 114;

(g)    the ability of the respondent to meet the cost, both in financial terms and in terms of efficiency, of acting in a non-discriminatory way: Waters v PTC at 395; and

(h)    factors such as the maintenance of good industrial relations, the observance of health and safety requirements, and the existence of competitors: Waters v PTC at 395-6.

122    Counsel for BDAC submitted that a number of matters made the Council’s adoption of the s 14(1) franchise for the ballot unreasonable. First, the Council had imposed that requirement in the exercise of a free discretion: it had not been required to do so by any law of the Commonwealth or of the State of South Australia and nor had the Minister or the NRWMF Task Force dictated that it do so. Further, the inclusion of the members of BDAC in the ballot could occur with relatively little inconvenience and cost.

123    In submitting that its adoption of the s 14(1) franchise was reasonable, the Council emphasised a number of matters. First, its decision to adopt the s 14(1) franchise was “logical and understandable”, for the reasons to which Ms Larwood had deposed. Further, as noted earlier, the s 14(1) franchise is that determined by the Parliament of the State of South Australia as appropriate for council elections and for polls conducted pursuant to s 9. This of itself indicated that the use of such a franchise was a reasonable means of obtaining community views. Furthermore, in a context in which there could be competing views about the further persons (and not just the BDAC members) to be included in the franchise, the use of that franchise reflected a verifiable and acknowledged legitimate means for the gauging of community views.

124    The requirement that the s 14(1) franchise be adopted was well adapted to the purpose of the ballot, namely, the ascertainment of community views in an independent and verifiable manner. It also provided consistency with the manner adopted in the 2017 Poll. It could not be unreasonable, so the Council submitted, for it to adopt a franchise well understood and well recognised for the ascertainment of community views, including for the democratic election of councillors.

125    A decision by the Council to include in the franchise all persons having some property interest in the Council area would have occasioned expense and inconvenience. For example, the Council would have to have ascertained the identities of all joint owners of land, to consider the way in which members of body corporates owning land should be included, to identify the members of each group, and to identify leaseholders. It may also have had to undertake some process of verification of BDAC’s members and perhaps of native title holders more generally. That is to say, if the interests of BDAC’s members as native title holders of land in the Council area was to be recognised by inclusion in the ballot, then the interests of other persons with interests in the land would, if the Council was to act consistently, also have to be addressed. This would involve administrative work, inconvenience and expense. In this respect the Council referred to its status as a relatively small rural council and the consequent desirability of it avoiding expending time and resources in redefining the franchise.

126    Next, the Council emphasised the confidence it could have in the integrity of the s 14(1) franchise, having regard to the way in which it is ascertained and maintained.

127    The Council referred again to the compromise to the integrity of the ballot if, despite native title holders having a form of group interest, all native title holders each had an individual vote when other groups had only a single vote.

128    Finally, the Council referred to the ready availability of alternatives by which the views of BDAC members concerning the Waste Facility could be ascertained. In this respect, it referred to the Department’s offer to provide funding for a meeting of BDAC members or, alternatively, to provide funding for a ballot of BDAC members. It could not be suggested that these alternatives were unreasonable or impractical because, in June, July and August 2018, BDAC had stated expressly its intention to undertake its own ballot in the event that its members were not permitted to participate in the Council ballot and the Department had, on 12 August 2018, offered funding for that purpose.

129    Having regard to all these matters, the Council submitted that the requirement that persons be within the s 14(1) franchise was reasonable.

130    In my view, the Council’s submissions are persuasive and should be accepted. It was reasonable for the Council to decide that the ballot should be conducted on the s 14(1) franchise. It is the franchise which the Parliament of South Australia has determined is appropriate for the participation of members of the Kimba community in the democratic election of councillors and for the conduct of polls pursuant to s 9. It is a franchise with which the members of the community are familiar, has the advantages of being objectively determined and is transparent. An enlargement of the franchise for the purpose of the ballot would have required a number of subjective judgments about the extent of the enlargement and raised issues concerning the proper identification of those within the expanded franchise. Further, the grant of individual votes to each of BDAC’s members would have involved a distortion of the franchise because each native title holder would have an individual vote whereas it is only the designated members of other groups who may vote. I consider that it was reasonable for the Council to adopt the s 14(1) franchise having regard to its status, its acceptance in the community generally, and the avoidance of the difficulties which could well have emerged if the franchise was to be extended. The Council was entitled to take into account BDAC’s stated intention that it would arrange its own ballot of its members.

131    For these reasons, BDAC does not establish that the Council’s passage of the resolutions or its “facilitation” of the ballot contravened s 9(1A) of the RD Act.

Impairment of a right or fundamental freedom

132    Again, and for the reasons given earlier, it is not necessary to address the parties’ submission on this issue.

Conclusion

133    For the reasons given above, BDAC does not establish contraventions of ss 9(1) or 9(1A) of the RD Act. Accordingly, the application must be dismissed.

134    I will hear from the parties with respect to costs, any other consequential matters and the effect of these reasons on the matter of Taylor v District Council of Kimba, Action SAD296/2018.

Associate:

Dated:    12 July 2019