Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Court and Tribunal Decisions - Australia
Federal Court of Australia (Gray, Merkel and Downes JJ)
17 October 2002
Statutes — rules made under statute — Indigenous Electoral Roll — eligibility to vote and stand as candidate in ATSIC regional elections — validity of rules — whether all or part of Pt 8 of the Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules (1990) (Cth) is void or invalid — whether Rules authorised by s 113 of the Aboriginal and Torres Strait Islander Commission Act (1989) (Cth) — whether rules extend the general scope and application of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)
The ATSIC Regional Council Election Rules (1990) (Cth) (the ‘Rules’), made by the Minister under s 113 of the Aboriginal and Torres Strait Islander Commission Act (1989) (Cth) (the ‘ATSIC Act’) provide for the manner in which Regional Council elections are to be conducted. In response to Shaw v Wolf (1998) 83 FCR 113 the Minister added Part 8 to the Rules, which primarily established the Independent Indigenous Advisory Committee and the Indigenous Electoral Roll. Part 8 empowered the Committee to decide the entitlement of persons to be on the Indigenous Electoral Roll, and provided for the review of Committee decisions by the Administrative Appeals Tribunal (the ‘AAT’).
A dispute arose when the Committee refused registration on the Indigenous Electoral Roll to several persons. These persons applied to the AAT for review of the decisions of the Committee pursuant to Rule 166. Pursuant to s 45(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the AAT referred to the Federal Court the question whether all or part of Part 8 of the Rules were void or invalid as not being authorized by s113 of the ATSIC Act.
1. Per Merkel and Downes JJ: Where subordinate legislation is not confined to the same field of operation as marked out by the Act itself, but attempts to widen the purposes of the Act and to add a means of carrying them into effect which the Act itself does not contemplate, the subordinate legislation will be invalid: [50], [51]. Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293 at 299-300 followed; Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250 cited.
2. Per Merkel and Downes JJ: If a rule provides a substantive, rather than a procedural criterion or requirement that was not provided for in the principal act, the rule will be held invalid: [48], [54]. Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 at 640 cited.
3. Per Merkel and Downes JJ: The first step to determining the validity of Part 8 of the Rules is to determine the true nature and purpose of the rule-makng power in section 113 of the ATSIC Act 1989 (Cth): [52]. South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 164-165 followed.
4. Per Merkel and Downes JJ: When determining the true nature and purpose of section 113, it is important to consider whether the legislative intention behind this section provides any parameters for the subject matter of the rules: [52]. Morton v Union Steamship Co of New Zealand [1951] HCA 42; (1951) 83 CLR 402 at 410 followed.
5. Per Merkel and Downes JJ: Section 113(2)(a) discloses a legislative intention that rules may deal with the establishment of an entitlement to vote which is a criterion for eligibility to vote (s101) and ineligibility to stand for election (s102(1)). There is no basis for giving the rule-making power in s 113 a narrow or limited meaning: [53].
6. Per Merkel and Downes JJ: The provisions of Part 8 of the Regional Rules may be properly characterized as concerning, or incidental to, the use of the roll ‘to establish an entitlement to vote.’ Rule 170 within Part 8 may be construed as providing a means by which the statutory criterion in s 102(1)(1) of ineligibility to stand for election may be established: [56], [57].
7. Per Merkel and Downes JJ: Part 8 of the Rules does not add an extra substantive criterion unauthorized by the Act. They can be properly construed as providing a criterion of eligibility, being on the Indigenous Electors Roll, that is consistent with the statutory precondition that voters (s101) and candidates (s102(1)(a)) be Indigenous: [57].
8. Per Merkel, Downes and Gray JJ: To the extent to which the rules in Part 8 provide for the creation and use of the Indigenous Electors Roll to establish a person’s entitlement to vote or to establish whether a person is ineligible to stand as a candidate for election, those rules are valid: [38], [62].
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48 The submissions of counsel for the applicant are summarised in the reasons for judgment of Gray J. In substance, counsel for the applicant contends that Pt 8 is inconsistent with s 101 of the ATSIC Act, and is therefore invalid, because under Pt 8 a person's entitlement to vote in the 2002 Tasmanian Regional Council election depended upon a determination by the Independent Indigenous Advisory Committee (‘the Committee’) of whether a person is an Aboriginal person and is therefore entitled to be placed on the Indigenous Electors Roll, rather than upon the statutory precondition in s 101(a) that the person be an Aboriginal person. It was said that the Committee's decision as to Aboriginality was an additional criterion that was not authorised by the Act. It was also contended that, in so far as Pt 8 provides for the creation and use of an electoral roll, those rules purported to confer substantive, rather than procedural, voting entitlements and therefore went beyond making rules prescribing ‘the manner in which Regional Council elections are to be conducted’: cf Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 at 640. In the course of the hearing a question also arose as to the validity of r 170 in so far as it had the effect of modifying the nomination rules by requiring that a person who nominates for the 2002 Tasmanian Regional Council election must be enrolled on the Indigenous Electors Roll: see r 170 and item 3 of Sch 2.
49. Senior counsel for the respondent contended that Pt 8 fell within the specific rule making powers conferred on the Minister under s 113 and that none of the rules within Pt 8 were inconsistent with the ATSIC Act.
50. The limitations on the power of a subordinate authority to make subordinate legislation were the subject of the following observations by a majority of the High Court in Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250:
...[The] power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its end.
51. Thus, where subordinate legislation is not confined to the same field of operation as that marked out by the Act itself, but attempts to widen the purposes of the Act and to add a means of carrying them into effect which the Act itself does not contemplate, the subordinate legislation will be invalid: see Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293 at 299-300.
52. The starting point for any consideration of the validity of Pt 8 of the Regional Council Election Rules is to determine the true nature and purpose of the rule-making power in s 113: see South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 164-165. An important consideration will be the degree to which the legislature has disclosed an intention that rules made under s 113 may deal with any particular subject with which the ATSIC Act is concerned: cf Morton v Union Steamship Co of New Zealand [1951] HCA 42; (1951) 83 CLR 402 at 410.
53. Section 101 of the ATSIC Act provides that a person is entitled to vote in a Regional Council election if and only if the person is an Aboriginal person or a Torres Strait Islander. Section 102 provides, inter alia, that a person is not qualified to stand for election as a member for a Regional Council ward if the person is not entitled to vote in the ward election. Section 113(1)(a) provides for the Minister to make rules that are not inconsistent with the Act, prescribing the manner in which a Regional Council election is to be conducted. The matters that may be dealt with in rules made under s 113 include the use of an electoral roll ‘to establish an entitlement to vote’ (s 113(2)(a)) and ‘the nomination of candidates for election’ (s 113(2)(c)). Thus, s 113(2)(a) discloses a legislative intention that rules may deal with establishment of an entitlement to vote which is a criterion for eligibility to vote (s 101) and ineligibility to stand for election (s 102(1)). Thus, there is no basis for giving the rule-making power conferred by ss 113(1)(a), 2(a) and 2(c) a narrow or limited meaning.
54. The purpose of Pt 8 is to provide for the establishment of an Indigenous Electors Roll for the 2002 Tasmanian Regional Council elections to ensure that only indigenous persons may vote in those elections (r 141). The roll establishes the entitlement to vote of persons applying to enrol as voters in the 2002 Tasmanian Regional Council election. An incident of the use of such a roll for that purpose is its creation in a manner that establishes the entitlement to vote of persons whose names are on the roll. The provisions in Pt 8 of the Regional Council Election Rules concerning the establishment of a Provisional Roll, decisions of the Committee as to the entitlement of a person to be on the final roll (the Indigenous Electors Roll), and the review of Committee decisions by the AAT in order to resolve disputes concerning a person's entitlement to be on the final roll, and therefore to vote at a Regional Council election, may properly be characterised as provisions concerning, or incidental to, the use of the roll ‘to establish an entitlement to vote’ at the 2002 Tasmania Regional Council election.
55. Of course, if a rule provides a substantive, rather than a procedural, criterion for enrolment that was not provided for in the ATSIC Act, the rule providing for that criterion might be adding a means of carrying the Act into effect which the Act itself did not contemplate and may therefore be inconsistent with the Act and invalid. However, properly construed, Pt 8 does not provide for a criterion for eligibility to be on the Indigenous Electors Roll that is inconsistent with s 101. The provisions for eligibility for enrolment (rr 144-146 and the enrolment form), and the determination by the Committee of objections to enrolment (rr 148-151) are based upon the requirement in s 101 that only Aboriginal persons or Torres Strait Islanders are eligible to vote. Rule 151(5) specifically requires that the Committee's decision on eligibility, where there has been an objection, be based upon its satisfaction, on the balance of probability, as to whether the person in question is an indigenous person, which is defined in r 142 to mean an Aboriginal person or a Torres Strait Islander. As the AAT ‘stands in the shoes’ of the Committee when reviewing the Committee's decision under r 166 (see Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99 at 106) it is bound to apply the same criterion.
56. As was made clear in Shaw v Wolf (at 117-122) the question of whether a person is an Aboriginal person can be a vexed and difficult question requiring inquiry into the person's descent, self-identification and communal recognition as an Aboriginal person. The legislature, by enacting s 113(2)(a), recognised the difficulties inherent in the determination of a person's entitlement to vote, and specifically provided for rules to be made to establish that entitlement. It is implicit in the use of an electoral roll to establish an entitlement to vote that there be a procedure for the establishment and determination of a person's entitlement to be on the roll, particularly where that person's entitlement to vote is in dispute. As such a determination is required by the Regional Council Election Rules to be made prior to the 2002 Tasmanian Regional Council election which is to be conducted by postal vote (see r 161(1)) the administrative processes for enrolment provided for under the Rules, including the determination by the Committee of a person's entitlement to be on the roll, and review of the Committee's decision by the AAT, are within the purposes of the rule-making power in s 113 and do not extend the scope or operation of the ATSIC Act or depart from or vary the plan which the Act has adopted to achieve its ends. Accordingly, in so far as the rules in Pt 8 provide for the establishment and use of the Indigenous Electors Roll to establish a person's entitlement to vote at the 2002 Tasmanian Regional Council election, the rules are within the rule-making power conferred by s 113(1) and (2)(a) and are valid.
57. As explained above, the rules in relation to the use of the Indigenous Electors Roll to establish a person's entitlement to vote are also relevant to a person's entitlement to nominate and stand for election. Under s 102(1)(a) a person is not qualified to stand for election if that person is not entitled to vote at the relevant Regional Council ward election. Rule 170 which is in Pt 8 of the Regional Council Election Rules, by incorporating the amendments to those Rules in Schedule 2, has modified the nomination rules in Pt 2 of the Rules by requiring that a person who nominates for the 2002 Tasmanian Regional Council election be enrolled on the Indigenous Electors Roll (item 3 of Sch 2 inserting a new sub-rule 8(3)). It is arguable that the addition of sub-rule 8(3) has added an additional substantive criterion for nomination, which is not provided for in ss 101 and 102 of the ATSIC Act and is therefore inconsistent with those sections. However, the preferable view is that the rule-making power in s 113(2)(a) to ‘establish an entitlement to vote’ is to enable the eligibility of voters to be established for the purposes of s 101 and the ineligibility of any candidate to stand for election to be established for the purposes of s 102(1)(a). Thus sub-rule 8(3), as incorporated under r 170, is a rule that falls within ss 113(1), 2(a) and 2(c) as it provides a means by which the statutory criterion in s 102(1)(a) of ineligibility to stand for election may be established, in much the same way as the Rules in Pt 8 provide a means by which a criterion to be an eligible voter under s 101 may be established. Accordingly, r 170, in so far as it incorporates r 8(3), is also valid.
58. In the course of submissions a question arose as to whether the Indigenous Electors Roll used by the Commonwealth Electoral Commission to determine a person's entitlement to participate in the postal vote for the 2002 Tasmanian Regional Council elections could establish the person's entitlement to vote for the purposes of an election petition under Sch 4 of the ATSIC Act. The respondent argued that if there is an election petition under Sch 4 of the ATSIC Act after the Tasmanian election the Court can determine a person's entitlement in much the same manner as occurred in Shaw v Wolf.
59. The nature and extent of the Court's jurisdiction on an election petition is set out in Sch 4. If it is contended that there has been an illegal practice because a non-Aboriginal person has contravened s 101 of the ATSIC Act or the Regional Council Election Rules by voting in the election the question arises as to whether the appearance of that person's name on the Indigenous Electors Roll is sufficient to establish the person's entitlement to vote. Absent an objection, a person's entitlement to be on the Roll will have arisen as a result of the person completing an election enrolment application containing a declaration that the person is eligible to enrol. If that person is subsequently found to have been ineligible to enrol then the declaration will have been erroneous, even if unintentionally so, and there may have been a contravention of s 101 of the Act, and possibly the Regional Council Election Rules.
60. The other situation that might arise is where a person's entitlement to be on the Roll has been objected to and the person's eligibility to vote has then been the subject of a determination in the person's favour by the Committee or the AAT. In Healey v Minister for Health (1955) 1 QB 221 (‘Healey’) the Court of Appeal considered whether a determination by a Minister under a statutory regulation that a person was not a mental health officer within the meaning of the regulations could be challenged in a proceeding in the court for a declaration that the person was a mental health officer within the meaning of the regulations. The Court of Appeal held that the proceeding was to be dismissed as the plaintiff, by his pleading, did not ask for a declaration that the Minister's determination was invalid nor did it assert that the determination of the Minister was wrong in law or that the Minister lacked jurisdiction. Rather, the plaintiff was taken to be inviting the court to assume an appellate jurisdiction, which it had not been given and could not create: see Denning L.J. at 228, Morris L.J. at 230-231 and Parker L.J. at 232-233.
61. In the present case the ATSIC Act has conferred original jurisdiction on the Court under Sch 4 in respect of an election dispute so the present statutory framework is plainly distinguishable from that considered in Healey. However, the question remains whether a person who was validly placed on the Indigenous Electors Roll can be found to have voted in contravention of the ATSIC Act. Section 113(8) provides that rules made under s 113 are a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth). Thus, when the rules are not disallowed by the Parliament they will have effect as legislative instruments. It is arguable that, in that context, ss 101 and 113 should be construed on the prima facie basis that they are intended to give effect to harmonious goals (see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381-382) so that if a person's name validly appears on the Indigenous Electors Roll in accordance with a valid rule, the person in question might be seen to have had an entitlement under the ATSIC Act and the Regional Council Election Rules to vote at the election. The question in such a case might be whether a challenge under Sch 4 is to be on the basis of the Court's supervisory jurisdiction or on the basis of a hearing de novo on the merits. As those issues, which are essentially ones of construction of ss 101 and 113, were not the subject of any detailed argument and their resolution is not necessary for a decision on the validity of all or part of Pt 8 of the Regional Council Election Rules, it is inappropriate to decide them on the present application.
62. For the above reasons we have concluded that, in so far as the rules in Pt 8 of the Regional Council Election Rules provide for the creation and use of the Indigenous Electors Roll to establish a person's entitlement to vote or to establish whether a person is ineligible to stand as a candidate for election at the 2002 Tasmanian Regional Council Elections, those rules are valid. As many of the rules in Pt 8 were not the subject of argument or challenge it is inappropriate to answer the question asked other than by reference to the matters raised in argument. Accordingly, the question of law referred to the Court should be answered as follows:
(i) To the extent to which the rules in Pt 8 of the Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 provide for the creation and use of the Indigenous Electors Roll to establish a person's entitlement to vote or to establish whether a person is ineligible to stand as a candidate for election at the 2002 Tasmanian Regional Council election those rules are valid.
(ii) Otherwise it is inappropriate to answer the question.
63. We agree, for the reasons stated by Gray J, that the parties should bear their own costs of the application to the Full Court.
Counsel for the Applicant:
Mr M O'Farrell
Solicitor for the Applicant:
Page Seager
Counsel for the Respondent:
Mr P Hanks QC
Solicitor for the Respondent
Australian Government Solicitor
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