FEDERAL COURT OF AUSTRALIA

Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1585

ORDERS

THE COURT ORDERS THAT:

1.    The appellant's application for an interlocutory injunction be dismissed.

2.    There be liberty to apply as to costs.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant, Barngarla Determination Aboriginal Corporation RNTBC (BDAC), is a corporation entrusted with the responsibility for administering the declared native title rights and interests of its members. It claims that its members have been excluded from a community ballot being conducted by the District Council of Kimba which is the local government authority for an area of land in the Eyre Peninsula in South Australia. The declared native title rights and interests of the members of BDAC apply to about 10% of that area.

2    The ballot is being conducted for the purposes of a process being undertaken by the Commonwealth Minister responsible for selecting a site in Australia for a radioactive waste management facility (Facility).

3    BDAC claims that the exclusion of its members from the community ballot is based on their Aboriginality. It says that those who hold freehold title to land in the area can vote by reason of that land interest, but those who hold native title interests cannot vote by reason of their interest in the land. In effect, it contends that by failing to treat a native title interest as a sufficient interest to confer a franchise to vote in the community ballot, but allowing a freehold interest to be a sufficient qualification, the District Council is making an exclusion based on race because native title interests are held only by Aboriginal people. The submission is partly founded upon a submission that in legislating a regime by which native title interests may be recognised and declared, Parliament intended those interests to have the same standing before the law as freehold title interests. On that basis, BDAC claims that the acts of the District Council in resolving to conduct the ballot and giving effect to that resolution contravene the Racial Discrimination Act 1975 (Cth).

4    The claims by BDAC were heard by a judge of this Court and were not upheld: Barngarla Determination Aboriginal Corporation RTNBC v District Council of Kimba [2019] FCA 1092. The primary judge found that although those who did not meet the requirements for the franchise to vote in the ballot were thereby excluded from the process for ascertaining the views of the Kimba community and those people included the members of BDAC, it had not been established that the exclusion was based on race: at [85]-[86]. Further, as the primary judge was firmly of that view, it was not necessary to consider whether the decision to conduct the ballot and the implementation of that decision impaired the political rights of the members of BDAC and their rights to enjoy the land the subject of their declared native title rights and interests: at [110].

5    BDAC has brought an appeal against the decision by the primary judge. Although the District Council refrained from conducting the ballot pending the outcome of the first instance decision, it now plans to proceed with the ballot even though there has been an appeal. That is to say, it proposes to act on the basis of the decision of the primary judge.

6    BDAC seeks an injunction restraining the ballot pending the hearing of the appeal. As matters presently stand the appeal will not be heard until at least February 2020. If there is no injunction, the ballot papers will be sent out next week. The ballot will take some weeks to conduct.

7    The District Council says that the appeal has insufficient prospects and the balance of convenience does not support the grant of injunctive relief. It says that the fact that it was determined by the primary judge that the claims by BDAC should not be upheld is a matter that informs the approach to be taken in considering whether to grant injunctive relief.

8    For the following reasons, the application for injunctive relief should be refused.

The process for the selection of a site for the Facility

9    The Commonwealth Parliament has enacted legislation to make provision for the selection of a site for the establishment and operation of a radioactive waste management facility. It provides for a mechanism by which a person who holds an interest in land many nominate the land as a potential site: Part 2 of the National Radioactive Waste Management Act 2012 (Cth) (NRWM Act). Land may be nominated by the owner in fee simple or the holder of a lease from the Crown: s 7(2) and (3). Where land is the subject of declared native title rights and interests to the exclusion of all others, the body holding those rights can also nominate the land as a potential site: s 7(4).

10    Two sites within the area of the District Council of Kimba (Kimba Council Area) have been nominated as potential sites. Neither of the sites is the subject of declared native title rights and interests. However, as I have noted, the Barngarla People hold non-exclusive native title over considerable parts of the Kimba Council Area. Some of those parts are quite proximate to each of the two potential sites.

11    The NRWM Act confers an absolute discretion upon the responsible Minister to approve land as a potential site (s 9) and then select approved land as the site for a Facility (s 14), being a facility for the management of controlled radioactive material of domestic origin that does not include high level radioactive material or spent nuclear fuel. The need for such a facility arises because of the waste generated in research, medicine and industry, particularly from nuclear medicine.

12    Within the NRWM Act there is 'an exhaustive statement of the requirements of the natural justice hearing rule' in relation to the approval and selection of a site: see s 10(7) and s 18(5). As to matters to be considered when approving and selecting a site, it appears to confine the obligation of the Minister to an obligation to take into account relevant comments given by a nominator of land as a potential site and any person with a right or interest in that land. Whether the Minister may assume a broader natural justice obligation by reason of the manner in which any process of selection is conducted by the Minister does not arise for consideration.

13    The declaration under the NRWM Act of a site as the selected site for a facility operates as a compulsory acquisition or extinguishment of the rights and interests in the land: s 19. Once the declaration takes effect the Minister must establish a regional consultative committee to facilitate communication between the Commonwealth, the operator of the facility and persons living in or near the region where the selected site is situated: s 22. Section 23 of the NRWM Act confers broad statutory authority to conduct activities on the selected site and to construct and operate a facility on the land.

14    Significantly, there is no provision of the NRWM Act that requires any form of local government, planning, community or other approval. All the necessary authority is conferred by the NRWM Act.

15    Nevertheless, the Minister issued a media release on 15 November 2015 which referred to six nominated sites that had been shortlisted as sites that may be the selected site. The media release stated that '[t]he Government wants to ensure that the community in and around these properties is informed and engaged in this important project'. It then stated:

As part of this commitment, the Department of Industry, Innovation and Science will now engage in extensive consultation over the next 120 days with local stakeholders with an interest in the sites.

The outcomes and feedback of the consultation process will help inform the Government's consideration of the next phase of detailed assessment, which will involve a further shortlist of two to three sites with an expectation of a final site being identified before the end of next year.

16    Despite these anticipated timeframes, it appears that the first phase was not completed until the middle of 2017. On 27 June 2017, the Minister announced that the two proposed sites within the Kimba Council Area would proceed to the next phase of assessment. The announcement said that in-depth consultation and technical assessment would be undertaken. It said that the 'Kimba community will have another chance to express their views before a decision is made about the suitability of either of the sites to host a National Radioactive Waste Management Facility'.

17    The consultation was ongoing and by May 2018, the Minister wrote to the Mayor of the District Council of Kimba in terms that included the following (May letter):

Firstly, I would like to thank Council members for their engagement on the NRWM Facility process to date, particularly their unremitting advocacy for an informed and transparent community debate. The Australian Government shares this view, which is why we have placed the community at the centre of the site selection process through the community ballot and public submission process, the establishment of the Kimba Consultative Committee and Economic Working Group, our direct engagements with community members, community newsletters, and the publication of online information.

18    It can be seen that the Minister proposed a process of community consultation by various means that included, but were not confined to, a community ballot.

19    As to the community ballot, the letter went on to say:

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 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 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.

20    The references to AEC are to the Australian Electoral Commission being the body that had conducted the 'previous ballot' undertaken as part of the first phase of consultation. The previous ballot was conducted on the basis that 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 question then posed was whether the voter supported a nomination for a site being progressed to phase 2 for further consultation for a National Radioactive Low/Intermediate Level Waste Management Facility. The result was declared on 22 June 2017. The outcome was that 690 formal votes were cast of which 396 were in the affirmative and 294 in the negative. That part of the process appears to have proceeded without any particular objection being raised. However, it appears from the reasons of the primary judge that the native title claims of members of BDAC had not been finally adjudicated at that time: at [6]-[8].

21    The voters roll for local government elections comprises residents and ratepayers only. It does not include those persons who hold a native title interest in the area, unless they are separately qualified to vote as residents or ratepayers. As rates are not assessed on the basis of native title interests, the holders of native title do not qualify on that basis.

22    Significantly, an owner of freehold land does not qualify on the basis of freehold ownership alone. Rather, a person is required to be a resident or the sole owner of rateable property or the sole occupier and ratepayer (but not a resident in respect of the rateable property). In the case of joint owners or occupiers, where none is a resident they can enrol as a group. However, group enrolment appears to confer a right to only a single vote for the group.

23    The Council resolved to conduct what was described as a 'community ballot' on the basis proposed by the Minister in the May letter. A resolution to accede to the request of the Minister and to conduct a ballot in the manner consistent with the Local Government (Elections) Act was passed on 9 May 2018. Further resolutions were passed on 13 June and 27 July 2018 dealing with matters to implement the original resolution.

24    Therefore, contrary to the submissions advanced for BDAC, the franchise for the ballot was not based upon ownership of freehold title. The owners of land that was not rateable could not vote. Joint owners of rateable land could only vote as a group. Freehold ownership was not the qualification for voting under the franchise expressed in the Local Government (Elections) Act.

The claim by BDAC of unlawful discrimination

25    The claim by BDAC that the holding of the community ballot contravened the Racial Discrimination Act was the subject of an application brought in this Court. By arrangement between the parties, the holding of the ballot was deferred pending the determination of those proceedings. The application was dismissed on 12 July 2019.

26    As already noted, BDAC then brought an appeal against the decision dismissing its claim. It sought an undertaking from the District Council to further defer the community ballot until the outcome of the appeal was known. The District Council declined to provide the undertaking and indicated that arrangements had been made for the despatch of ballot papers on 3 October 2019. It is in those circumstances that BDAC seeks an injunction restraining the District Council from undertaking the ballot pending the outcome of the appeal. It proposes expedition of the appeal if an injunction is granted. The Attorney-General for the State of South Australia and the AEC have been served with the papers. The State of South Australia appeared at the hearing of the application for injunction relief but did not seek to make submissions. There was no appearance for the AEC.

General principles concerning injunctions pending the hearing of an appeal

27    A single judge of this Court may make an interlocutory order pending the determination of an appeal: s 25(2B) of the Federal Court of Australia Act 1976 (Cth). An application for such an order must be heard and determined by a single judge unless the judge directs that the application be heard and determined by a Full Court or the application is made in a proceeding that has been assigned to a Full Court and the Full Court considers that it is appropriate for it to hear and determine the application: s 25(2BB). It appears that a matter is not so assigned until the particular judges who will hear the appeal have been identified: Starkey on behalf of the Kokatha People v State of South Australia [2016] FCA 1577 at [8]. There is yet to be such an assignment in the present appeal. The matter has been allocated to me in the meantime and I am satisfied that it is appropriate for me to hear and determine the application.

28    In considering whether to grant an interlocutory injunction, it is necessary to identify the legal or equitable rights that are yet to be determined: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199. It is those rights which provide the foundation for the grant of relief if it is shown to be just or convenient to preserve matters until the determination can occur. Where, as here, the rights yet to be determined are appeal rights, there is the difficulty that the relief, if granted, will impede one party from giving effect to an existing judicial determination of those rights. The grant of an injunction in such a case may preserve the appeal rights, but it will, at the same time, prevent the operation of a determination of those rights that has already been undertaken. So, the position where an injunction is sought pending the outcome of an appeal is not completely analogous in terms of principle to the position where an injunction is sought at first instance. Further, whereas an injunction that is sought before there has been a decision at first instance must be considered on the basis of materials that are incomplete and untested, that is not the case where an injunction is sought pending an appeal.

29    On an application for an injunction pending an appeal, the principles as stated in Jesasu Pty Limited v Minister for Mineral Resources (1987) 11 NSWLR 110 are often cited. They require the applicant for an injunction pending appeal to demonstrate that the failure to give relief may involve serious and arguably irreversible damage to the appellant and the loss of valuable rights: Network Ten Pty Ltd v Rowe [2006] NSWCA 4 at [11]. Expressed in those terms they may reflect an abandonment of any requirement for special or exceptional circumstances having regard to the principle that a party is prima facie entitled to the fruits of a judgment, being the view expressed in the earlier decision in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 693-694.

30    However, since the decision of Wheeler JA in BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers [2005] WASCA 138 at [16]-[20], the special circumstances requirement has been maintained in a series of decisions in Western Australia.

31    At least in Western Australia, the Court of Appeal when hearing an application for an injunction pending an appeal proceeds on the basis that the nature of the criteria which are ordinarily relevant are analogous to those which are relevant to the grant of a stay pending appeal, including whether the refusal of the injunction would render the appeal nugatory. On that basis it is said that a litigant at first instance will ordinarily be entitled to enforce the judgment pending determination of the appeal and an applicant for an injunction restraining the successful party from doing so must show special circumstances justifying departure from that ordinary rule: see, most recently, T v B [2018] WASCA 157 in which the Court relied on earlier decisions to that effect.

32    The Western Australian approach by analogy to a stay was noted and applied by Rares J in Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCA 1217 at [10], a passage expressly approved of in Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [33].

33    For the District Council, reliance was placed upon the decision of Jessup J in ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [3]-[4]. In that decision, the requirement for 'a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial' as stated in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 was translated into a requirement that there was a sufficient likelihood of success in demonstrating error on the part of the primary judge. See also, Mylan Health Pty Ltd v Sun Pharma ANZ Pty Ltd (No 2) [2019] FCA 505 at [47] (Yates J).

34    As to the general principles to be applied on an application for injunctive relief at first instance, they are well known and were summarised by Dowsett, Foster and Yates JJ in Samsung Electronics Co. Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74]. They require a consideration of whether there is a prima facie case for relief and whether the balance of convenience and justice favours the grant of relief. It may be helpful to look at the matter in terms of where the greatest risk of an injustice would lie if an injunction was granted and the claim ultimately refused compared to if an injunction was refused and the claim ultimately upheld. The questions of a prima facie case and the balance of convenience are related inquiries such that the apparent strength of a claim may be an important matter to be weighed in the balance: at [67], [71]. 'It may also be necessary to consider and evaluate the impact that the grant or refusal of an injunction will have or is likely to have on third persons and the public generally': at [68]. Generally, the Court looks to preserve the status quo until it can undertake a considered determination of the claims, rights and interests the subject of the court proceedings.

35    However, as to the application of general principles where an injunction is sought in aid of an appeal, it is to be noted that the decision in ALY15 applied the reasons of French J in Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [15] where his Honour stated that the Court's assessment of the strength of the case on appeal 'will be influenced by the fact that there has been an adverse judgment at first instance'.

36    Further, where an injunction is sought pending an appeal it is necessary to inquire whether the refusal of that relief would render the appeal nugatory. If that is the case then the Court must also evaluate the strength of the appeal as well as where the balance of convenience lies having regard to matters including the strength of the case on appeal in deciding whether to grant the injunction. These propositions are evident from the reasoning in Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (No 2) [1988] HCA 53; (1988) 165 CLR 452, particularly at 460.

37    So, an appeal based upon grounds that are assessed as having considerable merit together with significant consequences for a respondent if deprived of the benefit of a judgment at first instance will not justify an injunction unless it can also be demonstrated that the appeal right will be rendered nugatory if the injunction is not granted. There must be some threat to retaining the benefit of a right of appeal before an injunction should be granted in the name of protecting that right. Although the term nugatory is used, the cases contemplate the possibility that an injunction might be granted pending appeal based upon a significant impairment of the right of appeal. So, it is not necessary to demonstrate that the appeal will lack any purpose at all if an injunction were not granted. Rather, it must be shown that the circumstances that are likely to unfold if the injunction is not granted so compromise a right to reverse the primary decision if it is demonstrated to be correct that without an injunctive order, the appellant will have lost that unqualified right. The significant point for present purposes is that as the injunction is sought to protect an appeal right, an appellant who seeks an injunction pending an appeal must be able to go so far as to show that a refusal of the injunction would substantively deprive the appellant of the benefit of that right.

38    Further, the fact that an injunction is sought pending appeal rather than before any determination by the Court has other consequences when considering whether to grant the application for an injunction pending appeal. At the stage when there has not yet been any determination of the claim, the question is whether the claim is strong enough that, taken with other considerations, the status quo should be kept in place until there is an adjudication. The Court acts to prevent a party acting inconsistently with the claimed right pending the determination. Where there has been a determination and an appeal right has been exercised then the Court acts to protect the integrity of the appeal right which brings a different perspective. In doing so, it also must bring into the balance the rights as now adjudicated and the entitlement of a party to the fruits of judgment (an aspect that is not present where an injunction is sought pending trial).

39    Therefore, it is necessary for the applicant for injunctive relief pending the outcome in an appeal to demonstrate (a) the ultimate benefit of a successful exercise of the appeal right is in jeopardy if there is no injunction; (b) there is sufficient strength in the argument to the effect that there was error in the primary decision to contemplate a restraint upon its being given effect; and (c) a sufficiently serious consequence for the applicant if an injunction was not granted to justify depriving a party until the outcome of the appeal is known of the benefit of what is a considered determination of the issues after a final hearing. Whether these matters together be described as a requirement that there be 'special circumstances' may be a matter of semantics.

40    Finally, whether an appeal right would be rendered nugatory if an injunction were not granted is a matter to be adjudged in a practical way having regard to the consequences to the appellant if the appeal was to succeed in circumstances where the respondent had taken steps on the basis of the correctness of the decision of the primary judge.

41    These matters assume significance in the present case because the first question is not whether there is a serious question to be tried as to whether the District Council has contravened the Racial Discrimination Act by proposing the ballot on the basis of the franchise in the Local Government (Elections) Act. That is to say, it is not whether there is an arguable basis for a claim to declaratory relief. Rather, the question is whether it is necessary to grant the injunction in order to protect the appeal right. In answering that question it is necessary to look forward and see what the likely consequences of a refusal of the application for injunctive relief may be. Will steps have been taken that mean that if the appeal is successful it will be of no moment because its subject matter will have been overtaken by events in a manner that could not readily be unwound by orders of the Court on appeal? The result is that it is necessary to focus upon the likely consequences of undertaking the ballot and whether an adjudication on appeal that the conduct of the District Council in relation to the ballot contravened the Racial Discrimination Act would have no consequence because the ballot will have been taken before the outcome of the appeal is known.

Will a refusal of the application for injunctive relief render the appeal 'nugatory'?

42    The requirement that BDAC demonstrate that the refusal of the application for injunctive relief will jeopardise the appeal right requires close consideration in the particular circumstances of this case. Although BDAC submitted that the horse will have bolted if the ballot is allowed to be conducted because it will be held well before the appeal is heard, in practical terms the ballot has significance only in the context of the process being conducted by the Minister. It has no other purpose and, of itself, will be of no practical consequence.

43    BDAC provided evidence in support of the application from a number of its members to the effect that the conduct of the ballot will, of itself, be distressing because it is viewed by members as unfair and alienating. The evidence included the following:

(1)    'not including the Barngarla in the ballot means that we will not be given the chance to protect my own country';

(2)    'I am aware that the Kimba Council is going to conduct a ballot about whether the nuclear waste dump is supported by the community … I believe that the Barngarla native title holders are part of the Kimba community and therefore should be part of that ballot … It is now some 52 years since the referendum giving Aboriginal People the vote … it appears that the Kimba Council does not accept the result of that referendum - at least, that is how it would seem to me if the ballot proceeds without including Barngarla People … It will make me feel even more an alien within my own country …';

(3)    'I am aware that the Kimba Council is about to conduct the ballot relating to the nuclear waste dump between now and November 2019 … I am very upset about the Council not including Barngarla native title holders … I am disappointed that the Council will not be taking our heritage and culture into account. I am upset how the Council disregarded our existence in the area';

(4)    'The holding of the ballot without including the Barngarla People would be disrespectful to all of us Traditional Owners … If the Kimba Council runs the ballot without including the Barngarla native title holders [we] will want to fight the results of the ballot when they are handed down, and this is because the results, whatever they may be, would not be truly reflective of the views of the Kimba community. To suggest that the Barngarla People … are not part of the Kimba community is not right';

(5)    'I am really upset that I do not have any say in relation to something that would affect my country';

(6)    'I am aware that the Kimba Council has refused to include Barngarla People in the ballot to be held relating to the nuclear waste dump … This behaviour of the Kimba Council refusing to include the Barngarla People in the ballot is just like the old days. In those old days we Barngarla people were told to shut up and do as we were told to do … I am really upset that Barngarla People cannot have a vote in the ballot when people who have come to Kimba and onto what has traditionally been Barngarla country are able to have a vote. How can that be fair? ... The whole attitude of the Kimba Council relating to not including Barngarla People in the ballot is disgusting and disrespectful'; and

(7)    various statements to the effect that that the inability to participate will be disappointing and make people feel 'pissed off' and ignored.

44    It is common ground that none of the members of BDAC qualify according to the franchise specified in the Local Government (Elections) Act. Their native title rights and interests are of a different character. They are not derived from their identification as an institution of the common law or a form of common law tenure: Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 at [46]. When claims under the Native Title Act 1993 (Cth) result in a declaration of native title rights and interests the task undertaken by the court is to translate an essentially spiritual connection into the making of the particular legal assessment required by the legislation: Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [14]. The significance of the evidence given by members of BDAC is to be understood in this context. Their concerns arise because of their traditional, essentially spiritual, connections with land in the area.

45    It is apparent that the distress expressed by members of BDAC arising from not having a voice in the community ballot despite their declared native title rights and interests in the area is associated with the character and purpose of the ballot and its perceived function in the process being undertaken by the Minister. It is a ballot which is being undertaken to gauge the level of the whole of community support for the proposed Facility. The evidence from members concerns their distress in not being included in a community ballot despite their view that they are members of the community. If the ballot were being undertaken to evaluate the views only of residents and ratepayers in the area then the attitude of members of BDAC may be different. In any event, it was the characterisation of the ballot as a community ballot that was the focus of the evidence of the members as well as the submissions for BDAC in support of the injunction.

46    However, it is also evident that the distress deposed to by members of BDAC arises from the use to which the ballot is to be put in the process being conducted by the Minister. It is the fact that the ballot relates to the consideration of the location of the proposed Facility that gives it particular significance. It may be that there would be distress in undertaking the ballot even if the Minister had not requested it and it was plain that is was to be disregarded by the Minister. Actions taken by the District Council on the basis that they will result in a ballot of the whole of the community, but which are viewed as excluding a significant part of that community, may give rise to distress and cause harm on the part of those who view the ballot in that way even though the ballot is never relied upon for any particular purpose. I say nothing about whether such harm has in fact been inflicted nor about whether the actions of the District Council undertaken so far may properly be criticised. The primary judge has found that there has been no unlawful discrimination and the appeal is yet to be heard.

47    However, what is relevant to the present application for injunctive relief is that to the extent that harm might be caused by simply holding the ballot (as distinct from the deployment of the results of the ballot for any particular purpose), any such harm has already been inflicted to a significant extent by the actions already undertaken by the District Council. Indeed, the Court was informed that representative proceedings have been commenced on behalf of native title holders in the area claiming damages on the basis of alleged unlawful discrimination by the conduct that has occurred concerning the community ballot. No doubt the appeal may have significance for the claims made in those proceedings which I was told have been put on hold pending the outcome of the appeal. The injunction sought is not necessary in order to preserve that consequence.

48    Otherwise, there will be no real prospect for significant further harm unless and until the Minister, for the purposes of the process of selecting the site for the Facility, acts upon the outcome of any ballot on the basis that it is an indication of the level of overall community support. It is only then that the claim by BDAC will have significance for the process. Until then, the appeal could not be said to be rendered nugatory as to the principal matter giving rise to the concerns of harm expressed by members of BDAC who have provided affidavits in support of the application.

49    Viewed in that context, if this Court was to determine on appeal after the ballot was conducted that the ballot itself was unlawful because it contravened the Racial Discrimination Act then that would still have significance because it would impugn its legitimacy as an expression of a view of the community. It would be an expression of the views of those in the community who were entitled to vote in local government elections, but it would be tainted by its adjudged discriminatory character. As such, paraphrasing the words of the Minister in the May letter, on the case advanced for BDAC it would not be an unambiguous view from the whole of the community on their support for hosting the Facility in the community. Therefore, provided the appeal decision was made before the Minister completed the second phase it could not be said that the refusal of the injunction application rendered the outcome of the appeal nugatory. The appeal decision would have the same practical significance at that point irrespective of whether the vote had been taken.

50    Therefore, the appeal will not be rendered nugatory to any significant extent by the conduct of the ballot. It was accepted for the District Council that the appeal may be rendered nugatory in part. In effect the submission was that the part was confined to the avoidance of the further harm to be occasioned if the ballot was to be conducted. To the extent that the harm was alleged to arise from the use to which the ballot might be put then it was submitted that the appeal still served that purpose. However, the claim of any other consequence after the ballot was conducted was disputed by the District Council.

51    The submissions for the District Council rose to a claim that the ballot was irrelevant in any event because the Minister was not legally obliged to consider or act upon the outcome of the ballot. This was said to be a reason why the injunction should not be granted. The actions of the District Council in seeking to proceed with the ballot on the basis of the franchise provided for by the Local Government (Elections) Act belie that submission. If the ballot was truly viewed by the District Council as lacking any significance for the process being conducted by the Minister concerning the location of the Facility then one wonders why there is such a desire to undertake the ballot and why senior counsel was briefed to oppose the injunction. Approaching the matter in the manner submitted ignores the lengths to which the District Council (with the encouragement of the Minister) has gone to arrange for such a ballot as part of a process of community consultation. In those circumstances, the present application cannot be dealt with on the basis that the outcome of the community vote will necessarily count for nothing once it has been undertaken.

52    On the evidence, there is potential future significance in the outcome of the ballot for the process being conducted by the Minister. That process has reached the second phase which will conclude with the exercise of the statutory power to select the site for the Facility, thereby bringing into operation the provisions of the NRWM Act that are designed to facilitate its construction and operation.

53    The real harm in any unlawful discrimination lies in the possible, perhaps likely, use of the ballot to guide the Minister's decision as an indication of the extent of overall community support for 'hosting the Facility in the Kimba community'. Not until that point is reached will there truly be a further meaningful consequence over and above that which has arisen by reason of steps which have already been taken. On the evidence there is no suggestion that any such decision is imminent. Indeed, there is no indication at all as to when that decision may be made.

54    It may be that the Minister is willing to abide the outcome of the appeal before making the decision concerning the location of the Facility. It may be that the Minister is willing to provide some other form of undertaking that will address the concerns that arise in relation to the use of the results of the ballot as a measure of community support. The evidence before me is to the effect that the Minister has been keen to secure the views of the native title holders as part of the consultation process. Indeed, offers have been made to assist with facilitating that consultation. So, the evidence does not indicate any refusal or unwillingness on the part of the Minister to bring to account those views in reaching a conclusion as to the level of overall community support for the selection of a site for the Facility in the area of the District Council, quite the contrary. The Minister's position is not known because the Minister is not a party to this proceeding.

55    It may be accepted that to the extent that the refusal of the injunction may result in further distress to the members of BDAC, being distress that would be consequent upon a breach of the Racial Discrimination Act if the appeal is successful, it will be materially new harm if the proposed ballot was treated by the Minister as an expression of the view of the whole of the community and put to some particular use on that basis. Depending upon the circumstances, the prospect of that harm may be sufficient to justify the grant of an injunction in the face of what is now the considered determination of the primary judge. It appears that part of the purpose of the appeal is to seek to demonstrate that the ballot involves unlawful discrimination so that adjudication may be used to question the ballot in the process being conducted by the Minister.

56    As matters presently stand, there is evidence in the form of the May letter to support a concern that the proposed ballot might be treated as an indication of overall community support even though the ballot will not include the members of BDAC as voters. Whether that would be appropriate whilst the appeal is pending or whether that prospect might provide a basis for injunctive relief if it was indeed threatened to occur before the outcome of the appeal was known are matters that do not arise for consideration at the present time. The application was founded only upon the claim that the undertaking of the ballot itself would cause distress sufficient to justify the grant of the injunction and render the appeal nugatory. For reasons I have given, that claim has not been made out.

The merits of the appeal

57    BDAC submitted that it has 'a strong prima facie case'. It was said that the appeal will turn upon the findings of the primary judge to the effect that the act of the District Council in resolving to conduct the ballot and taking steps to give effect to that resolution was not 'based on' race for the purposes of those words as used in s 9 of the Racial Discrimination Act. A separate claim made before the primary judge that the same actions contravened s 9(1A) of the Racial Discrimination Act is not pursued on appeal.

58    The submission did not criticise the summary by the primary judge of the principles to be applied. They were expressed in the following way at [69]-[71]:

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.

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.

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.

59    On the current state of the law there do not appear to be any authorities dealing with the application of these principles in a similar context to that which arose for consideration by the primary judge. Further, there can be difficulties in applying s 9 of the Racial Discrimination Act because, in the language of Gibbs J in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 86, the content may be described as 'vague and elastic'. This is an aspect that makes it difficult to form clear views as to the merits of a claim that arises in novel circumstances.

60    The submission made for BDAC was that the primary judge had erred by placing undue weight upon why the District Council approached the ballot in the way that it did rather than by considering the way the ballot operated. It was said that by allowing people to be qualified to vote based upon their freehold interest but not on their native title interest, the resolution to conduct the ballot according to the franchise in Local Government (Elections) Act was based on race.

61    The primary judge found that the franchise was not established based on race. The criteria for the franchise included people of all races who were residents or ratepayers. The primary judge accepted evidence that the matters relied on when passing the resolution were (a) the Local Government (Elections) Act provided a defined set of rules for the conduct of elections and polls; (b) their use was familiar to the Council and the local community; and (c) they provided a high level of transparency and accountability from the Council. Further, none of those matters were referrable to the Aboriginality of BDAC's members. These aspects were dealt with by the primary judge at [88]-[90].

62    The primary judge then identified a number of respects in which the circumstances supported the Council's claim concerning the matters that it relied upon: at [91]-[103].

63    To focus upon why the franchise for the ballot was determined in the manner in which it was determined did not, in itself, manifest error. As was said by Allsop J (as the Chief Justice then was), Spender and Edmunds JJ agreeing in Baird v State of Queensland [2006] FCAFC 162; (2006) 156 FCR 451 at [54]:

It is clear that, whilst s 9 may involve a question of purpose and thus considering why the person acted as he or she did, there is no necessity otherwise to examine motive or intention to discriminate …

64    Therefore, consideration of why the District Council acted in the manner that it did was relevant to forming a view about the purpose of the conduct. Whether, ultimately the approach of the primary judge was correct will be a matter for the hearing of the appeal. However, the matter advanced for BDAC to support its claim that it had a strong prima facie case does not support that conclusion.

65    For the District Council it was also submitted that the outcome of the appeal would not turn only upon the challenge to the finding of the primary judge as to whether the acts concerning the ballot were based on race. In addition there would be issues as to whether the exclusion of members of BDAC from the ballot impaired a human right or fundamental freedom (a matter not considered by the primary judge) and whether BDAC was seeking a form of special measure within the meaning of s 8 of the Racial Discrimination Act. It was submitted for the appellant that the issue concerning a special measure was not raised before the primary judge. However, at [106] the primary judge said:

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.

66    Submissions were not advanced by either party on the application before me as to the merits of these aspects of the issues.

67    In all those circumstances, I reject the argument for BDAC that it has been demonstrated that there is a strong prima facie case for BDAC on the appeal. Further, as I have already noted, when it comes to the merits of the appeal due weight must be given to the existence of the considered determination made by the primary judge rejecting the claim by BDAC.

Balance of convenience

68    A number of submissions were advanced by the District Council as to the balance of convenience.

69    First, it was submitted that the ballot would provide the Minister with the view of one particular group, being residents and ratepayers. However, the Minister has indicated that the views of other stakeholders, particularly native title holders, will be considered. For reasons I have already given, this submission fails to engage with the nature of the claim that is advanced. The complaint by BDAC is not to the effect that they are being excluded from the Minister's consultation process, but rather that they are being excluded from a community ballot. BDAC alleges that what is occurring is that a ballot that is being conducted as a community ballot is to be undertaken according to a franchise that is confined to residents and ratepayers and it is that aspect of the acts of the District Council that makes it discriminatory in an unlawful way. By adopting the franchise provided for in the Local Government (Elections) Act, the District Council is conducting a community ballot, but is excluding Aboriginal members of the community, being the 211 members of BDAC.

70    Second, it was submitted that BDAC and its members have been given an opportunity to make submissions to the Minister and the fact that they have not yet taken up that opportunity is a matter that counts against the grant of an injunction because they have chosen to refuse to participate in that way. This submission encounters the same difficulty as the first submission.

71    Third, it was submitted that there was nothing preventing the BDAC from conducting its own ballot and representing those views to the Minister. Again that submission proceeds on the basis of a misconception of the nature of the case advanced by BDAC.

72    Fourth, it was submitted that the matters deposed to by members of BDAC (referred to above) did not address any relevant prejudice because the only relevant prejudice could be conduct that deprived those members of the opportunity to put submissions to the Minister, which had not been shown. However, for reasons I have given, having regard to the nature of the claim advanced by BDAC, it is relevant to consider evidence of any distress or harm arising from being excluded from a ballot that is being undertaken on the basis that it is a community ballot.

73    Fifth, it was submitted that including the members of BDAC in the proposed ballot would mean that the joint holders of the native title interest would each get a vote, when other joint owners would only be entitled to a single group vote. There is a logical flaw in this submission. It assumes that what is sought by BDAC is relief that would require a ballot to be conducted according to the franchise provided for by the Local Government (Elections) Act but altered to add the members of BDAC. Rather, what is sought is declaratory relief to the effect that the acts of resolving to conduct the ballot as proposed and to give effect to that resolution are based on race and therefore contrary to s 9 of the Racial Discrimination Act. Significantly, whether the acts of the District Council are to be viewed as having that character is to be adjudged by reference to the fact that the ballot is being undertaken on the basis that it is a community ballot, not by reference to the franchise provided for in the Local Government (Elections) Act. The complaint made is that by choosing the franchise in the Local Government (Elections) Act, the District Council has adopted a franchise for the community ballot that, in practical terms, excludes people based on Aboriginality because the main group in the community that will not be entitled to participate are the declared holders of native title. As holders of native title they are part of the community and, together with other owners of common law land interests should be able to participate in a community ballot based upon their native title interest.

74    Sixth, it was submitted that there was a need to proceed expeditiously and hold the ballot as soon as reasonably practicable as the Department has indicated a level of urgency in the selection of the site by the Minister. I note that this submission sits uncomfortably with the submission to the effect that there is no consequence if the ballot was allowed to proceed because the Minister is not bound to consider the ballot. Plainly, the Minister is proceeding on the basis that the outcome of the ballot is an important part of the consultation to be undertaken before the decision on the site for the Facility is made. However, what is not known is the timeline as to how the Minister will proceed and whether the Minister proposes, without knowing the outcome of the appeal, to treat the outcome of the ballot as a measure of community support.

75    As to the evidence about alleged urgency, it took the form of a letter by the General Manager for the National Radioactive Waste Management Taskforce on the letterhead of the Department of the Minister to the Chief Executive Officer of the District Council dated 20 September 2019. It was attached to an affidavit dated 23 September 2019 filed the day before the hearing of the application for interlocutory injunctive relief. The letter referred in general terms to future delay having significant consequences for the project of establishing the Facility. It said that the delay that had already occurred had already resulted in 'significant additional direct and indirect costs being incurred by the Commonwealth'. It stated that if the site selection process is further delayed then 'it is unlikely that the Facility will be operational prior to the existing storage capacity being exhausted'. This eventuality was said to be one that would 'result in further significant costs being incurred by the Commonwealth to develop and implement temporary storage solutions'. There was some general description of the nature of these costs. None of the costs were quantified, nor were the timelines contemplated by the reference to delay explained. The period within which the appeal might be dealt with might be a matter of months but there is no basis from which to reach a conclusion as to how long the author of the letter thought any injunction might operate to delay the project to establish the Facility.

76    The author of the letter did not depose to the matters in the letter, but stated that 'I would be grateful if you could bring these matters to the attention of the Court, so that all relevant information is taken into account in deciding whether a further injunction ought to be granted'. The application for injunctive relief was brought with sufficient notice to enable the preparation of affidavit evidence of these matters if they were considered to be significant.

77    In all those circumstances, the matters in the letter barely rise above general assertion and I accept the submission for BDAC that the matters set out in the letter should be afforded little weight on the present application.

78    BDAC provided an undertaking as to damages. It also indicated that it would do all that was within its power to facilitate an expedited hearing of the appeal.

79    Therefore, had I been persuaded as to other aspects of the basis for the application, I would not have regarded the matters raised as to the balance of convenience to be reasons why the application for an injunction should be refused.

Conclusion and costs

80    In all those circumstances, I refuse the application for injunctive relief. For reasons I have given there may be proper cause to renew the application in the future depending upon the intentions of the Minister as to the steps to be taken once the outcome of the proposed ballot is known but before the appeal is able to be heard and determined. However, as the application is presently framed it is premised upon the claim that the conduct of the ballot itself will have a consequence that is sufficient to justify the grant of injunctive relief because it will render the whole of the appeal nugatory and will cause significant harm to members of BDAC. As I have said, that basis for the injunction has not been made out and it remains to be seen what the intentions of the Minister are in relation to the use of the ballot in the further conduct of the process for the purposes of the exercise of the statutory powers conferred by the NRWM Act. In the meantime, it will be open to BDAC to take steps to invite the Court to list the appeal with urgency. Whether those steps are taken and the outcome of those steps will be important matters for the Court to consider in the event that the application for injunctive relief is renewed at any stage.

81    The application required consideration of the merits of the grounds advanced in the appeal. There was limited affidavit material filed by the District Council as to the balance of convenience. There is the possibility that there may be a further application for injunctive relief. When the decision on the application was reserved for consideration, counsel for BDAC indicated he would not be available to attend at the time when the decision was to be given. In all those circumstances, I propose to reserve the question of costs at this time and provide for liberty to apply on the question of costs.

Associate:

Dated:    27 September 2019