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Editors --- "Minister for Immigration and Multicultural and Indigenous Affairs v Chulung - Case Summary" [2003] AUIndigLawRpr 36; (2003) 8(3) Australian Indigenous Law Reporter 29

Court and Tribunal Decisions - Australia

Minister for Immigration and Multicultural and Indigenous Affairs v Chulung

Federal Court of Australia (Mansfield J)

31 July 2003 (Corrigendum 29 August 2003)

[2003] FCA 782

Aboriginal and Torres Straight Islander Commission — election of regional councillors — non-eligibility for election of candidate — recount of votes or new election — Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) — Regional Council Election Rules — ‘casual vacancies’ rule

Facts:

Mr Chulung was elected to the Regional Council in 1999. On 5 September 2002, Mr Chulung was nominated to stand for office again.

In 2002 he was convicted of drug offences. Pursuant to a determination made by the Minister in September 1994, the commission of an offence which results in such a conviction is taken to be misbehaviour for the purposes of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).

Mr Chulung was removed from office on 17 October 2002 and served with notice of this decision according to the procedure established in s122A of the Aboriginal & Torres Strait Islander Commissioner (Misbehaviour Determination No 2). In the meantime, procedures for the 2002 round of elections were occurring.

The polling took place between 8–19 October, and Chulung was announced as duly elected to serve as member for the Ward on the Regional Council again. Therefore at the close of polling and time of declaration of the poll, Chulung had been removed from his office as member of the Regional Council.

The case arose as a reference by the Minister to determine the eligibility of Mr Chulung for election as a regional councillor of ATSIC in 2002, after he had been declared elected, pursuant to sch 4 pt 3 of the Aboriginal and Torres Straight Islander Commission Act 1989 (Cth).

The questions for the court to decide were whether Mr Chulung was eligible for election, and if not, whether a new election or a recount should follow from his election, and how this was to be achieved.

Held:

1) Mr Chulung was not qualified to stand for election as a member for the Ward at the close of polling in the 2002 round of elections as set out in s 102(1B) of the Act as it was after he had been removed from office as a Regional councillor under s 122A(5): [15]–[16].

2) A fresh election should not be held. The scheme established under the Regional Council Election Rules for ascertaining the result of the polling did not invalidate the electorate’s wishes, being calculated to reflect the proportionate support of the electors for the respective candidates at the time of the election: [18].

3) It would not be appropriate to order a recount of votes in accordance with the Aboriginal and Torres Straight Islander Commission (Regional Council Election) (Casual Vacancies) Rules 1990. These rules would not apply directly to this situation, and the will of the electorate at the time of the election would likely be distorted, as only some of the previously unsuccessful candidates would be willing to be included in the recount: [20]–[27]. Pettit v Atkinson (1994) 50 FCR 174 followed.

4) A recount of the votes cast at the election was ordered to elect a member of the Regional Council for the Ward in lieu of Mr Chulung with the successful candidate declared elected. As the ballots on which the first preference was given to Mr Chulung remain valid, even though he was ineligible for election, they should be included in the recount if they also expressed subsequent preferences: [28].

5) The appropriate counting procedure for the recount of the votes should be as set out in the Schedule to the Casual Vacancies Rules, but with appropriate modifications: [29]. Pettit v Atkinson (1994) 50 FCR 174 followed.

6) To allow the parties to make submissions about these modifications, orders will be made following a short adjournment: [30].