LAURIE v NEW SOUTH WALES ABORIGINAL LAND COUNCIL [2010] NSWCA 199

Reported Decision: 175 LGERA 247

New South Wales Court of Appeal

CITATION: LAURIE v NEW SOUTH WALES ABORIGINAL LAND COUNCIL [2010] NSWCA 199

HEARING DATE(S): 9 June 2010

JUDGMENT DATE: 26 August 2010

JUDGMENT OF: McColl JA at 1; Basten JA at 2; Handley AJA at 80

1. Appeal dismissed. 2. Cross-appeal allowed. 3. Orders 1, 2, 3 and 5 made on 19 October 2009 set aside. DECISION: 4. In lieu thereof (a) declare that Patricia Helen Laurie is and has been disqualified since 22 May 2007 from holding the office of councillor for the North Coast region in the New South Wales Aboriginal Land Council and that a new election must be held to fill that vacancy. (b) declare that the New South Wales Aboriginal Land Council is entitled to cease paying Patricia Helen Laurie the remuneration and allowances of a councillor of the New South Wales Aboriginal Land Council as referred to in subss 120(5) and (6) of the Aboriginal Land Rights Act 1983 (NSW). 5. Make no order as to the costs of any party in this Court in relation to the appeal or the cross-appeal.

CATCHWORDS: ABORIGINALS – NSW Aboriginal Land Council – election to office of councillor – whether a person disqualified from holding office is also disqualified from standing for election - APPEAL – civil – election of disqualified councillor – challenge to validity of election not limited by provision for disputed return – Aboriginal Land Rights Act 1983 (NSW), s 125 - ELECTIONS – election of disqualified councillor – challenge to validity of election not limited by provision for disputed return – Aboriginal Land Rights Act 1983 (NSW), s 125 - STATUTORY INTERPRETATION – casual vacancy – whether mechanism was available to resolve the ineffective election of a disqualified person – Aboriginal Land Rights Act 1983 (NSW), s 133 - STATUTORY INTERPRETATION – whether a provision for disqualification from holding office extended to disqualification from standing for election – Aboriginal Land Rights Act 1983 (NSW), s 132 - WORDS & PHRASES – "casual vacancy"

Aboriginal Land Rights Act 1983 (NSW), ss 4, 27, 53, 54, 56B, 56C, 62, 63, 66, 111, 114, 120, 121, 122, 125, 126, 127, 128, 132, 133, 134, 135, 226; Divs 1, 2, 3, 4,5 Pt 7; Sch 5, cl 3 Aboriginal Land Rights (Amendment) Act 1990 (NSW) Aboriginal Land Rights Amendment Act 2001 (NSW) Aboriginal Land Rights Amendment Act 2006 (NSW) Aboriginal Land Rights Regulation 2002 (NSW), cll 47, 55, 79, 84 Commonwealth Electoral Act 1918 (Cth), ss 180, 181, 182, 273 LEGISLATION CITED: Constitution, ss 15, 44, 45, 47 Crimes Act 1900 Land and Environment Court Act 1979 (NSW), ss 20, 58, 71 Municipal Corporations Act 1882, s 87 Road Transport (Driver Licensing Act) 1998 (NSW),s 25A Supreme Court Act 1970 (NSW), s 70 Uniform Civil Procedure Rules 2005 (NSW), r 36.4

CATEGORY: Principal judgment

Australian Electoral Commission v Wilson [2003] FCA 434 Connolly v Dickson [1992] NSWLEC 55 Drinkwater v Deakin (1874) LR 9 CP 626 Ex parte Attenborough, in re Bent (1868) 5 VLR(L) 103 Holmes v Angwin [1906] HCA 64, 4 CLR 297 In Re Wood [1988] HCA 22; 167 CLR 145 Laurie v New South Wales Aboriginal Land Council [2009] NSWLEC 58; 166 LGERA 157 Laurie v New South Wales Aboriginal Land Council (No 2) [2009] NSWLEC 73 Laurie v New South Wales Aboriginal Land Council (No 3) [2009] NSWLEC 108 Laurie v New South Wales Aboriginal Land Council (No 4) [2009] NSWLEC 161 Laurie v New South Wales Aboriginal Land Council (No 5) [2010] NSWLEC 13 CASES CITED: Lester v Ellis [1996] NSWLEC 245 McDonald v Keats [1981] 2 NSWLR 268 Pritchard v Mayor of Bangor (1888) 13 App Cas 241 Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371; (2002) 125 FCR 89 R v Beer [1903] 2 KB 693 R v Hickman; Ex parte Fox [1945] HCA 53, 70 CLR 598 R v Mailes [2001] NSWCCA 155 R v Morton [1892] 1 QB 39 R v Young [1999] NSWCA 166; 46 NSWLR 681 Shaw v Wolf (1998) 83 FCR 113 Sykes v Cleary [1992] HCA 60; 176 CLR 77 Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404

Patricia Helen Laurie – Appellant New South Wales Aboriginal Land Council – First Respondent PARTIES: Electoral Commissioner of New South Wales - Second Respondent Brian Decelis, Returning Officer – Third Respondent Attorney-General of NSW – Fourth Respondent

FILE NUMBER(S): CA 2009/298474

S B Docker – Appellant COUNSEL: J J Kirk/CC Spruce – First Respondent Submitting appearances - Second and Third Respondents M J Leeming SC - Fourth Respondent

Conroy Stewart Spagnolo – Appellant SOLICITORS: Chalk & Fitzgerald Lawyers – First Respondent I V Knight, Crown Solicitor - Second, Third and Fourth Respondents

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40616/2008

LOWER COURT JUDICIAL OFFICER: Pain J

LOWER COURT DATE OF DECISION: 19 October 2009

LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWLEC 58; [2009] NSWLEC 161; [2010] NSWLEC 13

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298474

McCOLL JA BASTEN JA HANDLEY AJA

26 August 2010 Patricia Helen LAURIE v NEW SOUTH WALES ABORIGINAL LAND COUNCIL Headnote

In March 2003, the appellant, Ms Patricia Laurie, was convicted for the offence of driving whilst disqualified, an offence carrying a maximum penalty of 18 months imprisonment. Amendments to the Aboriginal Land Rights Act 1983 (NSW) ("the Land Rights Act") which commenced on 7 February 2007 rendered the appellant's conviction for driving whilst disqualified, being recorded within the last five years, a ground of disqualification from holding office as a councillor of the New South Wales Aboriginal Land Council ("the State Land Council") under s 132(1)(c) of the Land Rights Act.

On 20 April 2007 Ms Laurie nominated for the office of councillor, for the North Coast Region of the State Land Council. Her nomination included a statutory declaration by her that she was not disqualified from holding office under s 132 of the Land Rights Act. Ms Laurie was successful in the election and she was declared elected as a councillor for the North Coast Region. Ms Laurie's conviction did not come to the attention of the Registrar until early 2008. At approximately the same time, the State Land Council formed the view that Ms Laurie was disqualified from holding office and withdrew certain benefits attached to the office, including use of a Land Council vehicle, petrol cards and payment of her salary. On 24 June 2008 Ms Laurie filed an application in the Land and Environment Court seeking a declaration that she held the office of councillor and her consequential entitlement to remuneration, travelling and other allowances. On 4 May 2009, Pain J held that Ms Laurie was validly elected, but that she was disqualified from holding office and the office of councillor may have been vacant: Laurie v New South Wales Aboriginal Land Council [2009] NSWLEC 58; 166 LGERA 157. Final orders were made on 19 October 2009 declaring that the appellant was elected to the office of councillor, but that there was now a casual vacancy in respect of that office.

Ms Laurie appealed to this Court seeking orders that whilst she was disqualified prior to her election, because her election had not been validly challenged and she had not lost office as a result of a disqualification arising after her election, she remained in office as a councillor. The State Land Council cross-appealed on the basis that the appellant was disqualified from holding office and was not validly elected. The Electoral Commissioner and the Returning Officer were joined as parties to these proceedings, with the Attorney General joined as an active participant.

The issues for determination on appeal were:

(i) whether the appellant's qualification to stand for election could only be considered by the Land and Environment Court, sitting as the court of disputed returns, pursuant to s 125 of the Land Rights Act; (ii) whether the grounds of disqualification from holding office in s 132 of the Land Rights Act constituted grounds of disqualification from standing for election; and (iii) whether there was a mechanism for resolving the ineffective election of a disqualified person.

The Court held, dismissing the appeal and upholding the cross-appeal in part: In relation to (i) (Basten JA, McColl JA and Handley AJA agreeing)

1. Section 125 of the Land Rights Act was intended to deal specifically with questions arising out of disputed elections, the Land and Environment Court being given the powers of a Court of Disputed Returns. By providing an exclusive mechanism for dealing with the validity of an election the Act did not demonstrate an intention to exclude other mechanisms by which questions of disqualification could be agitated. Section 125 does not stand in the way of a declaration that Ms Laurie was not validly elected because she was unqualified: [32].

In Re Wood [1988] HCA 22; 167 CLR 145 at 164 applied.

2. There was no "obvious typographical error" in s 20(3) relating to the power of the Land and Environment Court to make appropriate orders in its class 4 jurisdiction covering a determination as to the eligibility of Ms Laurie to exercise functions as a councillor of the State Land Council: [33]-[39].

The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 followed. R v Young [1999] NSWCA 166; 46 NSWLR 681 cited.

(Handley AJA, McColl JA agreeing) 3. Sections equivalent to s 125(1) which enabled a parliamentary election to be challenged in judicial proceedings are properly construed as exclusive codes because the courts had no inherent or common law jurisdiction in such cases. The position with subordinate elected bodies such as the State Land Council is different. The superior courts have inherent or common law jurisdiction over elections to such bodies and the status of their office holders which is exercisable by the prerogative writs of quo warranto and mandamus. There is a presumption that Parliament does not intend, in the absence of clear words, to take away the jurisdiction of the superior courts, or rights given by the common law: [105]-[109].

McDonald v Keats [1981] 2 NSWLR 268, cited. R v Beer [1903] 2 KB 693; Ex parte Attenborough , in re Bent (1868) 5 VLR(L) 103, 105-6 followed. Holmes v Angwin [1906] HCA 64, 4 CLR 297; In Re Wood [1988] HCA 22, 167 CLR 145 distinguished.

In relation to (ii) (Basten JA, McColl JA and Handley AJA agreeing) 4. By identifying persons who were disqualified from holding office, s 132(1) was also identifying persons who were unable to stand for election. There is nothing in s 132 to suggest that the status of disqualification is only engaged once a person enters the office of councillor: [41].

5. Although s 63 provides that a person disqualified from holding office is disqualified from standing for election as a member of a board of a Local Aboriginal Land Council, the absence of an express statement to that effect in s 121(4), dealing with disqualification from standing for election as a councillor, does not lead to a different result. Prior to the enactment of s 63, common sense precluded a person disqualified from holding office from standing for election: [42]-[46]. (Handley AJA, McColl and Basten JJA agreeing)

6. Section 125(1) and 132(1) can be reconciled by giving the disqualification in the latter continuing effect throughout the term of office independently of the election process. This does not mean that the election of a disqualified candidate cannot be challenged under s 125(1), but it means that a continuing disqualification can be enforced although the election can no longer by challenged: [111]. R v Hickman; Ex parte Fox [1945] HCA 53, 70 CLR 598 applied.

In relation to (iii) (Handley AJA, McColl JA agreeing) 7. The appellant's continuing disqualification did not create a casual vacancy because the vacancy created by the election on 22 May 2007 was never filled. This conclusion is supported by ss 133, 134 and 135. The appellant never became "a councillor", nor did she "become" disqualified because she was disqualified before the election. She could not vacate an office that she never held and the office did not "become vacant", it remained vacant: [113].

8. The Aboriginal Land Rights Regulation 2002 provides in cl 55 for optional preferential voting. If there were 3 or more candidates, the "real intention" of voters who voted for the appellant without indicating a preference for another candidate, or who indicated a second or later preference for the appellant without indicating any further preference, cannot be known. The election for this Region held on 22 May 2007 has failed and there must be a new election to fill the vacancy: [126].

(Basten JA dissenting) 9. There is no express provision for a by-election under the Land Rights Act. There is a process available under s 134 where a casual vacancy arises during the course of a term of office. The term "casual vacancy" is not defined. The fact that the vacancy occurred as a result of no qualified person being elected, rather than a person properly elected having ceased to hold office is not critical; in either case there is a vacancy. Given that no election process is on foot in order to fill that office, the vacancy may properly be described as "casual", in the sense of being out of the ordinary scheme provided by the statute. The fact that the person appointed will hold office "for the remainder of the term of office" assumes that a term has commenced, but not been completed. This is apt to describe the current circumstances because part of the term between elections has passed. Thus provision in respect of a casual vacancy is an available mechanism absent provision for a by-election: [55]-[62].

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298474

McCOLL JA BASTEN JA HANDLEY AJA

26 August 2010 Patricia Helen LAURIE v NEW SOUTH WALES ABORIGINAL LAND COUNCIL Judgment 1 McCOLL JA: I agree with Handley AJA. 2 BASTEN JA: A litigious extravaganza has developed from a relatively confined series of events, the occurrence of which is not in dispute. They involve the election to the New South Wales Aboriginal Land Council of a person disqualified from holding office by reason of a conviction. The litigation has revealed a number of omissions and difficulties of construction with respect to the provisions governing elections in the Aboriginal Land Rights Act 1983 (NSW) ("the Land Rights Act"). 3 The legal consequences, however, have given rise to five separate judgments in the Land and Environment Court and a degree of procedural confusion on appeal in this Court. The most convenient course in disposing expeditiously of the appeal and cross-appeal is to set out the events, the relevant statutory provisions and the legal consequences. In order to determine the appropriate orders, it will, however, be necessary to address key aspects of the procedural steps taken in the Court below and the positions of the various parties. Factual and procedural background 4 The critical facts fall within a short compass. First, on 11 March 2003, Ms Patricia Laurie (the appellant), was convicted in Maclean Local Court for the offence of driving whilst disqualified, contrary to s 25A(1)(a) of the Road Transport (Driver Licensing Act) 1998 (NSW). That provision made it an offence to drive a motor vehicle on a road whilst disqualified from holding a driver licence, an offence carrying a potential maximum penalty of imprisonment for 18 months. 5 Amendments to the Land Rights Act, which commenced on 7 February 2007, rendered the appellant's conviction a ground of disqualification from holding office as a councillor of the New South Wales Aboriginal Land Council ("the State Land Council"): see s 132, inserted by the Aboriginal Land Rights Amendment Act 2006 (NSW) ("the 2006 Amendment Act"). 6 Also in February 2007, the Registrar appointed under the Land Rights Act announced that there would be an election of councillors for the State Land Council on 19 May 2007. On 26 March 2007 the Registrar called for nominations, by 23 April 2007, of candidates for the forthcoming election. On 20 April 2007 Ms Laurie was nominated for the office of councillor, for the North Coast Region of the Land Council. Her nomination included a statutory declaration by her that she was not disqualified from holding office under s 132 of the Land Rights Act. In fact, her conviction for driving whilst disqualified, being recorded within the last five years, constituted a disqualification under s 132(1)(c). 7 The existence of the conviction not being known to the Registrar or the Returning Officer, the latter accepted her nomination and, following the poll, she was duly declared to be elected as a councillor for the North Coast Region, the declaration of the poll occurring on 22 May 2007. The applicant purportedly took office as a councillor of the State Land Council at the end of a period of administration, on 30 May 2007. 8 The fact of Ms Laurie's conviction did not come to the attention of the State Land Council or the Registrar until early 2008, when there was an investigation, following a further driving offence. On 15 February 2008, the Registrar raised the issue in a letter to Ms Laurie. It appears that, at about the same time, the State Land Council formed the view that she was disqualified from holding office and withdrew certain benefits attached to the office, including use of a Land Council vehicle, petrol cards and, at some point, payment of her salary. 9 The material parts of s 132 of the Land Rights Act read as follows: " 132 Grounds for disqualification from office (1) A person is disqualified from holding office as a councillor of the New South Wales Aboriginal Land Council if the person: … (c) has a conviction in New South Wales for any other offence that is punishable by imprisonment for 12 months or more … that was recorded within the last 5 years ... … (2) The Registrar may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence." 10 In March 2008 the appellant invited the Registrar to determine, pursuant to s 132(2), that the offence should be ignored as a ground of disqualification, because of the time that had passed since the offence was committed and because the triviality of the acts giving rise to the offence. The Registrar declined to exercise his powers under that provision. 11 On 24 June 2008 Ms Laurie filed an application in the class 4 jurisdiction of the Land and Environment Court seeking a declaration that she held the office of councillor and as to her consequential entitlements to remuneration, travelling and other allowances. (She also sought an order setting aside the determination of the Registrar, but that aspect of the application was dismissed.) As appeared from the points of claim filed in the Land and Environment Court, Ms Laurie did not contest that her 2003 conviction resulted in her disqualification from holding office as a councillor of the State Land Council. Rather, she contended that she was entitled to remain in office in circumstances where:

(a) the validity of her election had not been disputed pursuant to an application under s 125 of the Land Rights Act ; (b) she was no longer disqualified from holding office, and (c) the office had not otherwise become vacant. 12 By way of cross-claim the State Land Council sought a declaration that the declaration of the poll was void and of no effect and, in the alternative, should be set aside. That is, on the admitted facts, Ms Laurie had never been validly elected and therefore did not hold office as a councillor of the State Land Council. Judgments below 13 The first judgment of the Land and Environment Court, delivered by Pain J on 4 May 2009, held that Ms Laurie was validly elected, but that she was disqualified from holding office and hence the office of councillor may have been vacant. Her Honour left open the form of the orders: Laurie v New South Wales Aboriginal Land Council [2009] NSWLEC 58; 166 LGERA 157 at [260]-[261]. (A large part of the judgment dealt with the challenge to the determination of the Registrar, which was rejected and was not raised on this appeal.) 14 The matter came back before the Land and Environment Court on three further occasions in 2009 for procedural orders in relation to the scope of the relief sought: the judgments, Laurie (No 2) [2009] NSWLEC 73 and Laurie (No 3) [2009] NSWLEC 108, are presently inconsequential. A further judgment, addressing the appropriate orders, was delivered on 21 September 2009: Laurie (No 4) [2009] NSWLEC 161. As it turned out, the only orders in question were whether Ms Laurie should be declared to have been validly elected and whether there should be a declaration that there was a casual vacancy in the office of councillor for the North Coast Region, being proposed order 6A as sought by the State Land Council on its cross-claim. Her Honour concluded that Ms Laurie was validly elected, but did not then make a declaration. She also concluded that proposed order 6A should be made, but that it was appropriate "to postpone the declaration of a casual vacancy … coming into force for a fixed period relating to the appellate process, assuming the [appellant] does wish to avail herself of that": at [91]. Her Honour invited the parties to formulate "suitable wording" for the latter declaration and to determine whether a declaration as to the election was also sought: [93]. 15 Final orders were not made until 19 October 2009, when the following orders were made: "1. The Court declares that the Applicant was elected to the office of Councillor representing the North Coast Region on the NSW Aboriginal Land Council pursuant to the Aboriginal Land Rights Act 1983 on 19 May 2007. 2. The Application is otherwise dismissed. 3. Subject to order 4 below, the Court declares that there is a casual vacancy in the office of Councillor for the North Coast Region on the NSW Aboriginal Land Council. 4. … 5. The Further Amended Statement of Cross-Claim is otherwise dismissed. 6. There is to be no order as to costs as between the Applicant and the Second Respondent [the Registrar]." 16 It is not necessary to set out order 4 in full; its effect, in the present circumstances, is that order 3 does not take effect until the determination of the present appeal. 17 Questions of costs were finally resolved when her Honour handed down Laurie v New South Wales Aboriginal Land Council (No 5) [2010] NSWLEC 13. That judgment resulted in two orders, namely that Ms Laurie and the State Land Council pay their own costs of the proceedings, and that Ms Laurie pay the costs of the solicitors for the State Land Council, against whom she had sought indemnity costs (a matter not in issue before this Court). Issues on appeal 18 The primary judge's conclusions that Ms Laurie had been validly elected but that she was nevertheless disqualified from holding office and that there was a casual vacancy in respect of that office caused a level of confusion, reflected in Ms Laurie's notice of appeal to this Court and in the notice of contention filed on behalf of the State Land Council. The grounds of appeal relied upon by the appellant were as follows: "1. The trial judge erred in finding that the appellant became disqualified from holding office as a councillor of the first respondent pursuant to s 132(1)(c) of the Aboriginal Land Rights Act … when the appellant took office, being 22 May 2007, or when she took office, being 30 May 2007 …, and in failing to finding that the appellant became disqualified from holding office as councillor of the first respondent on the commencement of s 132(1)(c) …, being 7 February 2007. 2. The trial judge erred in finding that the appellant vacated the office of councillor of the first respondent representing the North Coast Region pursuant to s 133(e) of the [Land Rights] Act on the basis that the appellant became disqualified on her election and in failing to find that the appellant did not vacate office because she did not become disqualified whilst she was a councillor." 19 Underlying these grounds were the following propositions, namely that:

(a) the appellant was disqualified prior to her election; (b) because her election had not been validly challenged in a timely manner, it was effective; (c) she could only subsequently lose office as a result of a disqualification arising after her election, and (d) her disqualification having pre-dated her valid election, she remained in office as a councillor. 20 The orders sought on the appeal were designed to give effect to those propositions and further sought to have the cross-claim dismissed. (The last order was consequential upon the conclusion that there was no casual vacancy in respect of the office she continued to hold.) 21 A notice of contention filed by the State Land Council included the following grounds for upholding the decision below: "1. On the admitted facts the Appellant was disqualified from holding office as a councillor of the NSW Aboriginal Land Council at all times from her election as a councillor for the North Coast Region in May 2007, and the office was thus vacated. … 3. The Court should in any event in its discretion decline to grant the discretionary relief sought by the Appellant … in circumstances where: (a) the Appellant was disqualified from holding office as a councillor of the NSW Aboriginal Land Council at all times from her election as a councillor in May 2007; (b) the Appellant's election proceeded on the basis of her incorrect statutory declaration as to whether or not she was disqualified…." 22 In the course of the hearing of the appeal, the Court raised a concern with counsel for the State Land Council, namely that its notice of contention was inadequate to raise for consideration the conclusion that the appellant had been validly elected. There was, as it then appeared, at least a potential awkwardness in the conclusion that the appellant was disqualified prior to her election, and remained disqualified thereafter, but was nevertheless validly elected. Because the proper constitution of a statutory body such as the State Land Council was a matter of public importance, it might have been thought unfortunate if the case were to be determined without considering the validity of the conclusion with respect to the appellant's election. 23 Following the hearing, and pursuant to directions given by the Court at the conclusion of the hearing (appeal Tcpt, 09/06/10, p 57(25)), the State Land Council sought leave to cross-appeal out of time. The grounds may be summarised as identifying three errors on the part of the primary judge, namely:

(a) in holding that the appellant was "capable of being elected as a councillor" she being, at all times material to the election, disqualified from holding office;

(b) in holding that a candidate's qualification to stand for election could only be considered by the Land and Environment Court sitting as a court of disputed returns, pursuant to s 125 of the Land Rights Act , and

(c) in failing to hold that the appellant was not validly elected as a councillor. 24 The appellant did not oppose the extension of time within which to file the cross-appeal. However, the challenge to the validity of the election gave rise to an application from the Attorney-General seeking to have the Electoral Commissioner and the Returning Officer joined as parties and, in order to avoid any question as to whether they were properly able to participate in the proceedings, an order joining the Attorney to allow him to be the active participant. No party opposed those orders and they were made by consent. Further written submissions were made by each of the active parties, the last being filed on 9 July 2010. (The Electoral Commissioner and the Returning Officer filed submitting appearances.) 25 In respect of the substance of the cross-appeal, both the appellant and the Attorney sought to uphold the validity of the appellant's election. It is convenient to turn immediately to that issue, which will turn on the proper construction of the Land Rights Act and determine the correctness or otherwise of the findings and orders made by the primary judge. Validity of election of disqualified person (a) general principles and issues raised 26 Any elected body must have rules identifying the qualifications of electors and the qualifications of those entitled to be elected. Further, there must be rules providing for nomination of candidates and for the conduct of the election. Frequently rules governing qualification (both for electors and candidates) establish broad categories (such as citizens, residents of an area or property holders within an area), with exceptions identified as specific grounds of disqualification (such as being a serving prisoner, in the case of an elector, or having been convicted of a non-trivial offence, in the case of a candidate). Where a person is not qualified as an elector, one may expect that his or her participation will not constitute a valid vote. With respect to a candidate who is not qualified to hold office, one might expect that successful participation in an election will, nevertheless, not give rise to the status of office-holder. Further, a person who has been validly elected may be disqualified by events or conduct occurring after election. In that case, one may expect that the office occupied by the person will fall vacant, either automatically, or through the ruling of an appropriate body. 27 Such broad statements of principle will not, of course, determine the outcome in the case of a particular dispute: that will require reference to the statutory scheme provided for the particular body. Thus, in the present case, the appellant placed emphasis upon four specific aspects of the Land Rights Act to contend that a pre-existing disqualification from holding office did not preclude her validly standing as candidate and being elected. First, s 132(1) identified circumstances in which a person "is disqualified from holding office as a councillor of" the State Land Council. The provision did not, she correctly submitted, expressly refer to disqualification from standing for such office. 28 Secondly, she noted that, in relation to membership of the Board of a Local Aboriginal Land Council, a person who is disqualified from holding office "is not qualified to stand and be elected as a Board member": s 63(2). That language, she submitted, was to be contrasted with s 121 which states that a person is "not qualified to stand for election, or to be elected, as a councillor representing a Region unless the person is a voting member of a Local Aboriginal Land Council the area of which is within the Region": s 121(4). Section 121 could have included, but did not, express reference to disqualification under s 132(1). 29 Thirdly, she noted that the exclusive mechanism for challenging the validity of an election for a councillor was by an application to the Land and Environment Court made within 28 days of the declaration of the poll, "and not otherwise", pursuant to s 125 of the Land Rights Act. That course not having been taken within the time prescribed, the validity of her election was, she contended, immune from challenge. 30 Fourthly, the appellant submitted that her construction must be correct because there was no mechanism in the Land Rights Act for remedying the vacancy caused by an invalid election of a disqualified person. Each councillor was to be elected in the manner specified in Division 3 of Part 7 of the Land Rights Act: s 121(1). However, Division 3 only provided for elections "of all councillors", to be held during a specified period measured from "the previous election of all councillors": s 122. There was no provision for a "by-election", to fill a casual vacancy. Rather, the Land Rights Act provided for the filling of casual vacancies, in accordance with regulations: s 134. (Regulations made provision for appointment by the Minister: Aboriginal Land Rights Regulation 2002 (NSW) ("the Regulation"), cl 84.) However, at least in the case of disqualification, she argued that the reference to a "casual vacancy" reflects the terms of s 133, providing that a councillor vacates office if the person "becomes disqualified from holding office as a councillor": s 133(e). That situation, the appellant contended, did not apply to her, because she had been disqualified prior to her election. (b) jurisdiction of Land and Environment Court 31 Dealing first with the third issue raised by the appellant, s 125 of the Land Rights Act, so far as relevant, provides: " 125 Method of disputing elections and returns (1) The validity of an election for a councillor to represent a Region, or of any return or statement showing the voting in any such election, may be disputed by an application to the Court, and not otherwise. (2) Any person may make an application to the Court under this section within 28 days after the returning officer has publicly declared the result of the election that is the subject of the application. (3) In determining an application under this section, the Court has the same powers as are conferred by section 161 of the Parliamentary Electorates and Elections Act 1912 on the Court of Disputed Returns." 32 It is apparent that s 125 was intended to deal specifically with questions arising out of disputed elections, the Court being given the powers of a Court of Disputed Returns: s 125(3). By providing an exclusive mechanism for dealing with the "validity of an election" and "of any return or statement showing the voting in any such election" the Act did not demonstrate an intention to exclude other mechanisms by which questions of disqualification could be agitated. As explained in In Re Wood [1988] HCA 22; 167 CLR 145 at 164-165: "A Senate election is not completed when an unqualified candidate is returned as elected. The return does not meet the exigency of the writ … because Senator Wood was incapable of filling the twelfth place. That is not to say that, putting to one side 'a mere abuse of the right of nomination or an obvious unreality' … the Electoral Officer who makes a return has authority himself to determine the qualifications of a candidate (who declares and maintains that he is duly qualified …) or to refuse to return the name of an otherwise successful candidate whose qualifications are in issue …. But the performance by the Electoral Officer of his ministerial functions in these respects does not determine the validity of the return or the efficacy of the election of an unqualified person to a vacant place in the Senate." 33 The appellant did not challenge the jurisdiction of the Court to make the declaration sought in the cross-claim, but the Attorney challenged the application of those principles to the power of the Land and Environment Court to make appropriate orders in its class 4 jurisdiction, as identified in s 20 of the Land and Environment Court Act 1979 (NSW) ("the LEC Act"). Pursuant to that provision, the Court has the following relevant jurisdiction: "20 (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function …. … (3) For the purposes of subsection (2), a planning or environmental law is: (a) any of the following Acts or provisions: Aboriginal Land Rights Act 1983 (other than Division 5 of Part 7); …." 34 Subject to the last words in parenthesis, this language is apt to cover a determination as to the eligibility of Ms Laurie to exercise functions as a councillor of the State Land Council. This being a jurisdiction or power conferring provision, it would be inappropriate to read in any implied limitation, not appearing in the express words: The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421. On its face, the exclusion of Division 5 of Part 7 is irrelevant for two reasons. The first is that s 20(1)(dd) separately confers jurisdiction on the Court to hear and dispose of "proceedings under Division 5 of Part 7 of the Aboriginal Land Rights Act 1983". (In addition, sub-s (2A) conferred precisely the same jurisdiction.) Secondly, in its terms, Part 7, Div 5 is irrelevant, because it deals with "Community, land and business plans". 35 Counsel for the Attorney submitted that the reference to Part 7, Div 5 had resulted from the failure to amend the LEC Act in 2006 when the Land Rights Act was restructured. Prior to that date, Division 5 of Part 7 was concerned with disputed returns. Accordingly, the Attorney submitted, there was an "obvious typographical error" of the kind referred to by Spigelman CJ in R v Young [1999] NSWCA 166; 46 NSWLR 681 at [14] so that the correct response of the Court would be to read the reference to "Division 5" in s 20 of the LEC Act as a reference to "Division 3 (formerly Division 5)". 36 This submission cannot be accepted in its terms. Unlike the former Division 5, Division 3 of Part 7 is not limited to "disputed returns". It is headed "Councillors of NSW Aboriginal Land Council" and contains provisions which were formerly in Divisions 1, 2, 3, 4 and 5 of Part 7 (though not all of those provisions). Accordingly, what is required in order to give effect to the apparent failure to amend the LEC Act in 2006 is to isolate those provisions which were formerly contained in Division 5, and are now in Division 3, namely ss 125-128. 37 That approach would be consistent internally with the fact that the return on an election can only be disputed pursuant to the procedure provided in s 125 (and not otherwise) and that the decision of the Court in such a matter is not appellable pursuant to s 58 of the LEC Act: s 128. Assuming, without deciding, that such a reworking of s 20 of the LEC Act is appropriate (cf Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276 at [40]-[62] (Beazley JA), [78]-[83] (Giles JA) and [103]-[104] (in my judgment)), that does not affect the outcome of the argument. This is not a case involving a disputed return and the limitations on the right of review and appeal which would arise if it were, are inapplicable. It is appropriate to read sub-ss 20(2) and (3) as not applying to disputed returns: those provisions should not, however, be read down to exclude declarations and orders sought otherwise than by way of disputed return of an election. 38 One of the Attorney's submissions effectively supports such a conclusion. He accepted that proceedings of the kind now under consideration, to restrain Ms Laurie from acting as a councillor and to have the office declared vacant, could have been brought under s 70 of the Supreme Court Act 1970 (NSW). However, the LEC Act expressly provides that proceedings referred to in sub-s 20(2) "may not be commenced or entertained in the Supreme Court", thus giving the Land and Environment Court exclusive jurisdiction: the LEC Act, s 71. As the Land and Environment Court had exclusive power to determine such matters before 2006, the LEC Act cannot be construed, through a failure to amend in 2006, so as to remove a jurisdiction which it would otherwise have continued to exercise. 39 In accordance with this reasoning, and assuming that there is a court which has power to determine such matters (an issue addressed below), s 125 will not stand in the way of a declaration that Ms Laurie was not validly elected because she was, at the time of her election, unqualified. Furthermore, there is an inconsistency between the appellant's next argument (that her disqualification did not preclude her from standing for election) and the argument that her election could only be challenged on a disputed return. Accordingly, the arguments must be addressed as alternatives. (c) grounds of disqualification as bar to election 40 The central issue of construction concerned the operation of ss 132 and 121(4) of the Land Rights Act. Ms Laurie's contention that the provision for disqualification from holding office, in s 132 did not extend to disqualification from standing for election (disqualification not being referred to in s 121(4)) was supported by the Attorney-General. However, that construction would tend to nullify the effect of the s 132. It is not clear how persons can be elected to and obtain an office which they are disqualified from holding, but presumably the argument accepts that there is a scintilla of time during which they hold the office before vacating it. Although the Land Rights Act provides that a councillor vacates office if he or she "becomes disqualified from holding office" (s 133(e)), that provision envisages that the person was at an earlier point in time the holder of the office and not disqualified. A reading of the statute which required that a person who became disqualified a week after election vacated his or her office, but that a person who was disqualified at the time of election was able to hold office, would border on the absurd. 41 The preferable (possibly the only reasonable) construction is that by identifying persons who were disqualified from holding office, s 132(1) was also identifying persons who are unable to stand for election. The alternative would render the election itself a solemn farce. The preferred construction is confirmed by the fact that the grounds include, as relevant in the present case, a conviction recorded within the last five years. Such a provision could only have sensible operation with respect to a person who had such a conviction in the past, and was then considering nominating as a candidate for election. There is nothing in s 132 to suggest that the status of disqualification is only engaged once a person enters the office of councillor. 42 The appellant's contrary argument may ultimately depend, not on the absence of any express reference to disqualification from standing for election in s 132(1), nor the absence of reference to disqualification in s 121(4) (dealing with disqualification from standing for election as a councillor), but the contrast of the latter with s 63, dealing with disqualification from standing for election as a Board member. Both ss 121 and 63 were introduced at the same time, by the 2006 Amendment Act. (Section 63 did not commence until 1 July 2007 and was not in operation at the time of the election: however, that does not render it irrelevant in construing the legislative scheme as enacted, of which it was a part: cf Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371; (2002) 125 FCR 89 at [60] (Beaumont J) and R v Mailes [2001] NSWCCA 155 at [108] where Spigelman CJ looked at the scheme of concurrently enacted legislation.) 43 Pursuant to s 62, each Local Aboriginal Land Council is provided with a Board to direct and control its affairs. Section 63 then provides: " 63 Board members (1) The Board members are to be elected at every second annual meeting of a Local Aboriginal Land Council. (2) A person is not qualified to stand and be elected as a Board member of a Local Aboriginal Land Council: (a) unless the person is a voting member of the Council, or (b) if the person is suspended or disqualified from holding office as a Board member or is suspended or disqualified from membership of the Council." 44 Section 66, which provides grounds of disqualification from holding office as a Board member of a Local Aboriginal Land Council, is in the same form as, and contains many of the grounds found in, s 132(1) in relation to councillors of the State Land Council. While the difference in terminology between ss 63 and 121(4) is no doubt significant, it provides limited assistance in determining the operation of Part 7. Prior to the 2006 Amendment Act, Local Aboriginal Land Councils, provided for in Part 5 of the Land Rights Act, did not have Boards and therefore did not have provisions for election of Board members, nor, therefore, in respect of qualification and disqualification for election or holding office. Part 7, dealing with the State Land Council, thus predated the provisions in Part 5 now relied upon for comparative purposes. The origin of s 121(4) is to be found in s 27, inserted in the Land Rights Act by the Aboriginal Land Rights (Amendment) Act 1990 (NSW) ("the 1990 Amendment Act"). It later appeared as s 120 with the commencement of the Aboriginal Land Rights Amendment Act 2001 (NSW) ("the 2001 Amendment Act"). It reached its current form with the commencement of the 2006 Amendment Act, with minor stylistic changes, primarily deleting reference to "a Regional Aboriginal Land Council area" and replacing it with "a Region". 45 The first reference to disqualification from holding office appears to have come with the provisions relating to the disclosure of pecuniary interests, ss 56B and 56C, (inserted by the 1990 Amendment Act), together with Schedule 5, cl 3(h), which provided that the office of a councillor became vacant if the councillor were to be disqualified from holding office under s 56C. The 2001 Amendment Act extended the scope of the disqualification provision to include persons convicted of an offence under identified parts of the Crimes Act 1900, for a period of five years from the date of conviction, thus constituting a progenitor (then s 111) to the present s 132(1)(c). Section 132, in its current expanded form, was introduced by the 2006 Amendment Act. 46 This history may explain the absence of direct cross-referencing between ss 121 and 132. Section 121(4) predated provisions for disqualification. The first provision for disqualification identified circumstances (non-disclosure of pecuniary interests) which could only arise after obtaining office and therefore called for no change to the then equivalent of s 121(4). Subsequent expansions of the grounds of disqualification, so as to cover circumstances which might well pre-date election to office, were not accompanied, probably through inadvertence, to any amendment of s 121(4). This history does not support any clear inference that a ground of disqualification from holding office, which pre-dated the election to office, did not also invalidate the election. Prior to the enactment of s 63, common sense would have required a reading of the provisions relating to councillors precluding a person disqualified from holding office from standing for election. The inclusion of s 63, which makes such provision expressly in relation to membership of the Board of a Local Aboriginal Land Council, tends to confirm, rather than undermine, the strength of that inference. Accordingly, when understood in context, the Act read as a whole supports the construction for which the State Land Council contended and not that proffered by the appellant with the support of the Attorney-General. (The appellant's argument that there is no mechanism to address the result will be addressed below.) 47 Before leaving this central point of construction, it is desirable to address two further arguments put by the Attorney. First, he submitted that disqualification "from holding office" presupposed some existing status to which a person becomes disentitled, that being the status "engaged by the returning officer's public declaration". However, as already noted, it is not entirely clear how, and for how long, a person who is disqualified could hold office, or even have some inchoate 'entitlement' to hold office, pursuant to a declaration of the poll. More importantly, the statutory language is equally consistent with disqualification from obtaining office and disqualification from continuing in office. Such semantic niceties must turn on the subject matter and statutory context discussed above. 48 Secondly, the Attorney contended that the differential approach to qualifications in s 121(4) and disqualifications in s 132 was understandable because the qualification - namely being a voting member of a Local Land Council - was objectively clear and readily determined, whereas at least some of the grounds of disqualification were readily contestable. There are several answers to these propositions. The first is that the supposed difference in kind, requiring differential treatment, does not sit well with s 63, which expressly introduces the notion of disqualification as a basis for not being qualified to stand for office. 49 The second response is that the submission assumes that no dispute can arise as to whether or not a person is a "voting member" of a Local Aboriginal Land Council. The term "voting member" is defined to mean a member who has "voting rights" in relation to that Council: s 4. The term "voting rights" is defined to mean "the right of a member of the Council to vote in the elections held by, and on any matter to be decided by, the Council". No doubt membership of a Local Aboriginal Land Council is an objectively determined fact, depending on whether a person is listed on the membership roll: s 53. However, qualification for membership may depend upon whether the person is an "adult Aboriginal person who has a sufficient association with the area" and is accepted as having such: s 54(2A)(b). Some of these concepts are contestable, including identification as an "Aboriginal person": see, eg, Shaw v Wolf (1998) 83 FCR 113. In any event, contestability provides an uncertain test of statutory construction and not one which should be treated as carrying weight in the present circumstances. 50 I also agree with the reasoning of Handley AJA holding that the appellant has not at any time since the election held office as a councillor of the State Land Council. (d) mechanism to resolve the present case 51 If the appellant does not hold office, an issue arises as to the proper mechanism (if any) to fill the vacancy on the State Land Council. 52 In the Court below, the State Land Council submitted that because Ms Laurie was disqualified from standing for election, there would either be a casual vacancy, to be filled in accordance with cl 84 of the Regulation, or an order for the recounting of votes cast at the 2007 election, or an order for a fresh election. Consistently with In Re Wood (at 168), it said that a casual vacancy arises under the Land Rights Act only where an office "becomes vacant" as a result of a supervening event, and not because the office had not been filled at the election. On that approach, no casual vacancy was created in this case. The State Land Council did not pursue a recount, because it cannot be known how electors would have voted, had Ms Laurie not been a candidate: see Sykes v Cleary [1992] HCA 60; 176 CLR 77; Connolly v Dickson [1992] NSWLEC 55; Lester v Ellis [1996] NSWLEC 245 (Pearlman J); Australian Electoral Commission v Wilson [2003] FCA 434 (Mansfield J). It followed, the State Land Council submitted, that the appropriate course would be to order a fresh election. The power to do so was not identified. 53 The appellant agreed that no casual vacancy arose. Her position in the Court below was that the only provision for elections was that contained in s 122. (Separate provisions for elections where an administrator has been appointed, at the conclusion of the administrator's term of office, were not relevant: s 226.) Section 122 provides only for an election for all positions on the Council. There is no statutory provision for a by-election. Accordingly, any challenge resulting in a vacancy following an election would only be dealt with by way of a disputed return and a recount, or by the filling of a casual vacancy. As neither of these possibilities was available, she argued that the conclusion as to the invalidity of her election must be erroneous. 54 It is necessary to assess the correctness of the view that no casual vacancy arose. Contrary to the position of the other parties, the Attorney submitted that there must be a casual vacancy, but one to which Ms Laurie may not be appointed. (Why the appellant was not eligible to be appointed was not explained, but may have derived from the assumed availability of another candidate, pursuant to cl 84(2) of the Regulation; cf cl 84 (3) at [60] below.) 55 Once it is accepted that the election of a disqualified person does not result in a person holding office, a construction of the legislation which provides a mechanism to ensure that the electors for a particular region are not disenfranchised when the true facts, and their legal effect, become known is to be preferred to one that does not. In other statutory regimes, the solution would be to hold a by-election. Under the Land Rights Act there is no express provision for a by-election. There is, however, a process available under s 134 where a vacancy arises during the course of a term of office. Section 134 reads as follows: " 134 Casual vacancy A person is to be appointed in accordance with the regulations to fill a casual vacancy in the office of a councillor for the remainder of the term of office." 56 The earliest provision in the Land Rights Act relating to the filling of a casual vacancy on the State Land Council appeared in Schedule 5, cl 4, introduced by the 1990 Amendment Act. Section 114, introduced by the 2001 Amendment Act, was in similar terms and is now s 134 (although the Regulation, cl 84, still refers to s 114). 57 The phrase "casual vacancy" in s 134 is not defined. Section 134 comes in Division 4 of Part 7, headed "Removal from office". In fact, the subject matter of Div 4 is somewhat more extensive: it deals with grounds for disqualification, vacancy in office, casual vacancy and orders made by the Administrative Decisions Tribunal declaring vacancies. That structure may suggest that the filling of a casual vacancy only arises where a councillor has vacated office in the course of his or her term, for a reason identified in s 133. Section 133 is in the following terms: " 133 Vacancy in office A person who is a councillor of the New South Wales Aboriginal Land Council vacates office if the person: (a) dies, or (b) is absent from 2 consecutive meetings of the Council …, or (c) completes a term of office and is not re-elected, or (d) resigns the office by instrument in writing addressed to the Council, or (e) becomes disqualified from holding office as a councillor under this Act, or (f) represents a Region the area of which is changed." 58 The paragraph of s 133 closest to the present circumstance is (e), which deals with a person who "becomes disqualified". However, because Ms Laurie was disqualified at the time of her purported election, she did not vacate office. If s 133 provides an exclusive list of circumstances in which a "casual vacancy" arises, for the purposes of s 134, s 134 will not operate in the present case. However, there is nothing except the order of the provisions which suggests that ss 133 and 134 should be read in this way. The purpose of s 133 is not to define the existence of a casual vacancy. For example, a person who, in the terms of s 133(c), "completes a term of office and is not re-elected" undoubtedly vacates his or her office, but that does not create a casual vacancy for the purposes of s 134. Further, s 133 is not an exclusive statement of the circumstances recognized by the Land Rights Act itself as creating a vacancy. Thus, declaration of the vacancy of an office under s 135 may constitute a casual vacancy for the purposes of s 134. Casual vacancies may also occur by operation of the Act. Thus, where an administrator is appointed to the State Land Council, the offices of all councillors become vacant: s 226(2). As will be seen below, the Regulation excludes them from the class of "casual vacancies" to be filled in accordance with s 134. These matters and the historical growth of the Land Rights Act, including at several stages the restructuring of the provisions, indicates that little weight should be given to any inference to be drawn from the order in which provisions appear. 59 A casual vacancy is generally understood as one which occurs within a period between elections. Section 133 identifies when a person "vacates office" but is directed to the status of the individual and not to the nature of the vacancy created. By contrast, s 134 depends upon identifying a "term of office", which has commenced, but not been completed. The office of councillor exists for each Region, as defined in s 120. In this case, the term of each councillor commenced on 30 May 2007: see [7] above. The fact that the vacancy in respect of the North Coast Region has occurred as a result of no qualified person being elected to that office, rather than a person who was properly elected having ceased to hold office is not critical; the result, in either case, is the same, namely a vacancy. Given that no election process is on foot in order to fill that office, the vacancy may properly be described as "casual", in the sense of being out of the ordinary scheme provided by the statute. 60 In these circumstances, s 134 is engaged and the provisions of cl 84 of the Regulation provide the solution to the current vacancy. That clause provides: " 84 Casual vacancy to be filled (1) A person is to be appointed in accordance with this clause to fill a casual vacancy in the office of a councillor representing a Region. (2) The Minister is to appoint the person who, at the time of the count at which the councillor was declared elected, was the candidate for election with the second highest number of votes. (3) If no person is available for appointment in accordance with subclause (2), the Minister is, after consulting with the New South Wales Aboriginal Land Council, to appoint a person who is qualified to be a candidate for election to the position (whether or not the person was a candidate for election). (4) This clause does not apply to a casual vacancy in the office of a councillor caused by the operation of section 226 (2) of the Act (being a casual vacancy caused by the removal of all councillors from office after the appointment of an administrator to administer all of the functions of the New South Wales Aboriginal Land Council)." 61 The fact that the person appointed will hold office "for the remainder of the term of office" assumes that a term has commenced, but not been completed. That is apt to describe the present circumstances, because part of the term between elections has indeed passed. 62 Thus, provision in respect of a casual vacancy may be seen as an alternative to a by-election. 63 The form of the relief granted in other cases where the election of an unqualified person has resulted in an office being vacant provide no necessary assistance in resolving the present issue. Thus, neither In Re Wood, nor Sykes v Cleary, can assist in construing the Land Rights Act. Each involved the election of a disqualified person to a House of the Australian Parliament, pursuant to the Constitution and the Commonwealth Electoral Act 1918 (Cth). Section 15 of the Constitution, dealing with casual vacancies, differs from s 134; s 15 commences "[I]f the place of a senator becomes vacant before the expiration of his term of service…". More importantly, the High Court in those cases sat as the Court of Disputed Returns. As such, it had the jurisdiction and powers of the Senate. As the Court noted in In Re Wood at 158: "It was not thought that the House [of Commons] lacked jurisdiction to determine that a new writ should be issued when a candidate who was disqualified was returned, or that its jurisdiction depended upon a determination by a judge that the election of the disqualified member was void. The traditional jurisdiction of the House of Commons to determine questions concerning the qualifications of its members and vacancies in the House was not superseded by the statutory jurisdiction conferred on the judges." 64 Their Honours continued at 160: "Being conferred in the language of s 47 of the Constitution, there is no reason to think that the jurisdiction of the Court when a question is referred to it under Div 2 is more limited than the jurisdiction which might have been exercised by a House of the Parliament if it were determining the question referred under s 376 of the Act." 65 The questions referred under that section included the determination of the mechanism to fill the vacancy: In Re Wood at 157. There was no doubt that the Court of Disputed Returns had the power (as did the Senate) to resolve such a question. However, the Land and Environment Court in the present case was not sitting as a Court of Disputed Returns. Its powers must be determined by reference to the relevant legislation. 66 It is not possible as a matter of statutory construction to read cl 79, dealing with the situation where "a candidate dies after the close of nominations and before polling day" as applying to a candidate who was disqualified from standing for election. To apply that provision in the present circumstances could not be justified by reference to any legitimate principle of statutory interpretation: it requires speculation as to what the legislature might have done had it considered the problem, which is not the proper role of the Court: Taylor v Centennial Newstan, at [37] above. 67 There being a mechanism available to resolve the problem created by the ineffective election of a disqualified person, the appellant cannot call in aid the absence of such a mechanism to demonstrate that the premise is wrong. Accordingly, the preferred construction of the Act set out above should be accepted. The appellant, being a disqualified person prior to standing for election, was not an eligible candidate and was not able to hold the office of councillor of the State Land Council. The casual vacancy for the North Coast Region may be filled pursuant to cl 84 of the Regulation. Conclusions and orders 68 It follows from the foregoing conclusion that the declaration made by the primary judge that the appellant was elected as a councillor of the State Land Council was erroneous and should be set aside. However, for the reasons given above and the further reasons given by Handley AJA, it is inappropriate to make any alternative declaration as to the election itself. The cross-appeal should be upheld. 69 The second declaration made by the primary judge, namely that there was a casual vacancy in respect of the office of councillor for the North Coast Region, was appropriate, though not on the basis adopted by her Honour. It should stand and the appeal should be dismissed. 70 The State Land Council sought a declaration that it was entitled to cease paying the appellant her remuneration and allowances as a councillor, to which she would otherwise be entitled pursuant to s 120(5) and (6) of the Land Rights Act. No submissions were addressed by any party to this relief and it would appear to flow consequentially from the conclusions reached above. 71 The State Land Council also sought a declaration that Ms Laurie "is not and has not been at any time since May 2007 a councillor for the North Coast Region of the New South Wales Aboriginal Land Council". It will be apparent from the reasoning of the Court that Ms Lawrie was not qualified at any time to hold office and the Land Council is entitled to a declaration in the terms sought. No issue was raised either by the cross-claim or the cross-appeal in respect of past payments. 72 A question arises as to the date from which the Court's orders should take effect. Although it did not declare that the appellant was disqualified from holding the office of councillor, the Land and Environment Court did declare that there was a casual vacancy in respect of the office: order 3, made on 19 October 2009. That order was said not to take effect until the date on which it was confirmed or an appeal against the order was dismissed. In the circumstances, it is appropriate that the orders of this Court take effect from the date on which judgment is delivered. That result will obtain in the absence of any order to other effect: Uniform Civil Procedure Rules 2005 (NSW), r 36.4. 73 These conclusions suggest that the joinder of the Electoral Commission and the Returning Officer were unnecessary steps, in the event. Their joinder was sought by the Attorney, in conjunction with his own joinder as a party. It is appropriate that each of those parties bear their own costs in this Court. 74 Ms Laurie has been unsuccessful in her appeal, but ultimately because the State Land Council has succeeded on its cross-appeal, on an issue not otherwise in dispute up to and including the hearing of the appeal. In these circumstances, the appeal must be dismissed, but with no order as to the costs of the parties to the appeal. 75 In its submissions on the cross-appeal, though not in the notice of cross-appeal itself, the State Land Council sought to reopen a question as to the costs of the Electoral Commissioner and the Returning Officer in the proceedings in the Land and Environment Court. No order was made by the Court in respect of those costs, but, having failed on two issues with respect to which the Commissioner and the Returning Officer had made submissions in opposition to the State Land Council's position, the State Land Council agreed to pay those costs. It does not now seek an order for costs against those parties, but merely an order that each party bear its own costs of those issues, which would result in a repayment of the costs already paid by the State Land Council. That position is sought to be justified on the basis that the issue on which the State Land Council has now been successful was by far the more significant issue; that even if the issues were of equal significance, each party would have had a degree of success, and that there was "no need" for those parties to make submissions on the legal issues to similar effect as those made by the appellant. 76 The last ground should be disregarded: it would have been a justification for the Land Council not to have paid the costs in the first place. Nor should the State Land Council be allowed, belatedly, to seek to reopen an agreement made below, in circumstances where the issue was not raised in the notice of cross-appeal, the parties were not joined to the cross-appeal, and when joined, they filed submitting appearances before the current application was raised. The Court should not intervene in respect of the costs paid below pursuant to an agreement. 77 There remains the question of costs with respect to the cross-appeal. As already noted, the State Land Council has been successful in that regard. However, it did not originally intend to cross-appeal and did so only belatedly when it became clear that the issues presented by the appeal might not allow for the Land Rights Act to be given effect, according to its proper construction. This involved a matter of public importance in respect of the administration of the Land Rights Act and the operation of the principal body corporate created under it, namely the State Land Council. 78 The State Land Council submitted that the appellant incurred no additional costs as a result of its late application to cross-appeal and, in the event that the cross-appeal were permitted, those costs would have been incurred in any event. That submission may be accepted, as far as it goes. However, it does not take into account the fact that there is likely to be an increase in cost (even if not easily quantifiable) resulting from the need to address the substance of the case in stages, including a significant part which did not arise until after the hearing of the appeal. Secondly, there is likely to have been some prejudice to the position of the appellant who, although she initiated the appeal process, proceeded to a disputed hearing in the belief that an important element of her claim, upheld in the Land and Environment Court, was not under challenge. Thirdly, although the appellant had a personal financial interest in maintaining her position as councillor, there were also matters of significant public interest involved in assessing her status. In the circumstances, it is appropriate that each party bear its own costs of the cross-appeal. 79 The orders made below are set out at [15] above. It is not intended to interfere with orders 3 and 4. The Court should make the following orders:

(1) Dismiss the appeal.

(2) Allow the cross-appeal and set aside orders 1,2 and 5 in the Land and Environment Court, made or given on 19 October 2009.

(3) In place of the orders set aside: (a) declare that Patricia Helen Laurie does not hold and has not been entitled since May 2007 to hold the office of councillor representing the North Coast Region of the New South Wales Aboriginal Land Council; (b) declare that the New South Wales Aboriginal Land Council is entitled to cease paying Patricia Helen Laurie the remuneration and allowances of a councillor of the New South Wales Aboriginal Land Council as referred to in sub-ss 120(5) and (6) of the Aboriginal Land Rights Act 1983 (NSW).

(4) Make no order as to the costs of any party in this Court in relation to the appeal or the cross-appeal. 80 HANDLEY AJA: In this matter I have had the benefit of considering the reasons for judgment of Basten JA in draft. I agree with His Honour's reasons subject to the qualifications which follow. I agree that s 125(1) of the Aboriginal Land Rights Act 1983 (the Act) did not prevent the Land and Environment Court considering whether the appellant was disqualified by s 132(1)(c) and (l) from holding office as a councillor of the New South Wales Aboriginal Land Council (the State Council). Section 132(1)(c) and (l) provide: "Grounds for disqualification from office

(1) A person is disqualified from holding office as a councillor of the New South Wales Aboriginal Land Council if the person: (a) …

(b) …

(c) has a conviction in New South Wales for any other offence that is punishable by imprisonment for 12 months or more … that was recorded within the last 5 years, or

(d)-(k) …

(l) is disqualified from being a Board member, other than on the ground that the person is a councillor." 81 Section 63(2)(b) relevantly provides: "(2) A person is not qualified to stand and be elected as a Board member of a Local Aboriginal Land Council: (a) …

(b) if the person is … disqualified from holding office as a Board member ..." 82 Section 66(1)(c) and (m) provide: "(1) A person is disqualified from holding office as a Board member of a Local Aboriginal Land Council if the person: (a) … (b) … (c) has a conviction in New South Wales for any other offence that is punishable by imprisonment for 12 months or more … that was recorded within the last 5 years, or (d)-(l) … (m) is disqualified from holding office as a councillor [defined in section 4(1) as a member of the State Council]." 83 Although ss 63 and 66 were not proclaimed to commence until 7 July 2007 s 132 was in the same bill which passed through both Houses at the same time and those sections are relevant to its construction. 84 On 11 March 2003 the appellant was convicted of an offence within ss 132(1)(c) and 66(1)(c), and when she stood for election as a member of the State Council (councillor) on 20 April 2007 and was declared elected on 22 May she was disqualified by s 132(1)(c) and (l) from holding that office. Section 132(1), unlike s 63(2), did not in terms disqualify her from standing for election as a councillor. Like s 66(1) it only disqualified her from holding that office. Section 125(1) and (2) provide: "Method of disputing elections and returns (1) The validity of an election for a councillor to represent a Region, or of any return or statement showing the voting in any such election, may be disputed by an application to the Court, and not otherwise. (2) Any person may make an application to the Court under this section within 28 days after the returning officer has publicly declared the result of the election that is the subject of the application. 85 The Council did not file its cross-claim seeking declarations that the appellant had not been elected and did not hold office as a councillor until 5 August 2008 (red 24). Her counsel argued that s 125 validated her election and her holding of the office by preventing any challenge once the 28 day period in s 125(2) had expired. 86 On 20 April 2007 the appellant lodged a nomination form supported by her statutory declaration, required by cl 47(1)(c1) of the Aboriginal Land Rights Regulation 2002, that she would not, if elected, be disqualified from holding the office of councillor under s 132. The returning officer, who was unaware of the facts, accepted the nomination. 87 Section 133(e) provides that a councillor vacates office if he or she becomes disqualified from holding office and this creates a casual vacancy under s 135. The section only applies if disqualification occurs after election. Any person may apply to the Administrative Decisions Tribunal at any time for a declaration that the office of a councillor has become vacant. 88 If the appellant had been convicted after her election her retention of the office could have been challenged in the Administrative Decisions Tribunal. Since she was already disqualified, had deliberately or otherwise sworn a false statutory declaration, and her disqualification was not discovered in time, she is now immune from challenge under s 125. Her counsel argued that her continued retention of the office cannot be challenged in any other way. Such a result invites careful scrutiny of the legal reasoning said to produce it. 89 Section 132(1) provides that the persons affected are "disqualified from holding office" and does not, in terms, invalidate an election, whereas s 125(1) is directed at "the validity of an election". 90 It will be necessary to consider the significance, if any, of this difference. Pritchard v Mayor of Bangor (1888) 13 App Cas 241, 247 and R v Morton [1892] 1 QB 39, 42-43 do not assist because s 87(1) of the Municipal Corporations Act 1882 enabled a municipal election to be quashed by an election petition on the grounds: "(c) that the person whose election is questioned was at the time of the election disqualified; or (d) that he was not duly elected by a majority of lawful votes." 91 Section 87(2) provided that an election could not be questioned "on any of these grounds except by an election petition" which had to be presented within 21 days. 92 Some objections to the validity of an election as a councillor can only be raised in timely proceedings under s 125. They include challenges to the allowance or disallowance of votes and irregularities or misconduct during the election. In Drinkwater v Deakin (1874) LR 9 CP 626, 634 Coleridge CJ distinguished between disqualification as a candidate and disqualification by conduct during the election. He referred at p 635 to personal disqualifications such as being an infant, a woman, an alien, or a convicted felon which were in the former category. He added at p 635: "In all these cases something is wanting in the candidate himself which cannot be supplied, the existence or non-existence of which is not dependent on argument or decision, but which the law insists shall exist in every one who puts himself forward as a candidate. Bribery, however, is altogether a different matter." 93 Dealing with bribery and other corrupt practices he said at p 636: "… the disqualifications created by them are intended to be and are the result of the finding or report of the judge or other tribunal, and … they attach only on such finding or report, and from its date." 94 Brett J, with the agreement of Denman J, said at p 644-5: "There is a manifest distinction between an offence avoiding an election and an incapacity. If a man is incapacitated, though at the election in question neither he or any elector is guilty of default, the election is void … works of acknowledged authority on the subject … set out long list of facts which will produce incapacity to be a candidate, but bribery at the existing election is never included … It is always treated as an offence which will avoid the election, but never as an incapacity." 95 In Re Wood [1988] HCA 22, 167 CLR 145, 163 the whole Court, in a joint judgment, referred to Drinkwater v Deakin, quoted with evident approval part of this passage from the judgment of Brett J and continued: "… a person who lacks the qualifications required by s 16 of the Constitution and prescribed by s 163 of the Act cannot be a senator and is therefore incapable of being chosen as a senator. That incapacity does not flow from the making of a judicial declaration that he lacks the requisite qualifications." 96 In R v Beer [1903] 2 KB 693 a councillor was elected while disqualified by bankruptcy, and the Court distinguished between disqualification for election and disqualification, not merely for election, but for holding the office. Lord Alverstone CJ said at 698-9: "There remains the question whether the disqualification under section 32 of the Bankruptcy Act 1883 which provides that a person adjudged bankrupt shall be disqualified for … 'being elected to or holding … the office … is within the category of continuing disqualifications which afford good ground for a proceeding by quo warranto , if the right to that remedy has not been taken away by the Municipal Corporations Act 1882 … It is true that s 87 [of the 1882 Act quoted [10], [11] above] says that an election shall only be questioned by election petition where the ground of the objection is disqualification at the time of the election; but I do not think that this extends to the continuous holding of the office by the person so disqualified … No other remedy than that by quo warranto , has been suggested by which a bankrupt can be prevented from holding such an office and I can see no reason why that remedy is not open to the prosecutors. In my opinion … s 32 amounts to a statutory declaration that a bankrupt may not hold a municipal office, whether he has been duly elected to it or not. Therefore although mandamus will not lie because the election itself cannot be questioned, and although s 39 of the Municipal Corporations Act 1882, applies to a disqualification by bankruptcy arising after the election, I think that where there is a continuing disqualification the right to hold office may still be questioned by quo warranto." (emphasis supplied). 97 Channell J at 700-701 said: "It is clear that Mr Beer was disqualified from being elected … and that his election might have been questioned by an election petition; that being so quo warranto , will not lie to question the election, for the purpose of questioning which an election petition is by s 87 of the Act of 1882, the only appropriate procedure. But if, in addition to being disqualified for election, he was also disqualified for holding the office, then … an office is being held de facto by an unqualified person, and the proper mode of procedure is by way of quo warranto. In my opinion that remedy is only taken away in cases where an election petition will lie, and disqualification by reason of 'holding' an office can only arise after the election has been held … The proper construction of [section 32] is … that … a bankrupt is disqualified both from being elected to the office and from holding the office if elected to it … There is a councillor de facto holding an office which he is disqualified for holding; the only and proper remedy is by quo warranto , in which judgment of ouster will be obtained." 98 The position in parliamentary elections is distinguishable from that in elections to subordinate bodies. Exclusive jurisdiction to determine the validity of parliamentary elections and kindred questions was originally vested in the relevant House of the Parliament: Holmes v Angwin [1906] HCA 64, 4 CLR 297, 305, 307-8. 99 This was confirmed in Re Wood [1988] HCA 22, 167 CLR 145, 157-8 where the Court said: "The jurisdiction … conferred on the respective Houses of the Parliament accords with the jurisdiction which the House of Commons exercised with respect to the election, return and qualifications of its members … until the passing of the Parliamentary Elections Act 1868 … [which] conferred on the judges of the superior courts of common law jurisdiction to determine disputes as to the election and return of members. The jurisdiction thus conferred was exclusive … the time limit for presenting an Election Petition was, with certain exceptions, 21 days after the return … However the House of Commons continued … to decide questions respecting the qualifications of persons elected and returned as members of the House … It was not thought that the House lacked jurisdiction to determine that a new writ should be issued when a candidate who was disqualified was returned, or that its jurisdiction depended upon a determination by a judge that the election of a disqualified member was void. The traditional jurisdiction of the House of Commons to determine questions concerning the qualifications of its members and vacancies in the House was not superseded by the statutory jurisdiction conferred on the judges." 100 Senator Wood was not an Australian citizen and was thus disqualified when nominated, but his election was not challenged in the Court of Disputed Returns within 21 days and was no longer impeachable (ibid at p 160). However the Act conferred jurisdiction on the Court to determine "any question respecting the qualifications of a Senator or of a Member of the House of Representatives" referred to it by the House in which the question arose. 101 The Senate referred the question whether there was a vacancy following the election of Senator Wood. His counsel argued that the Court lacked jurisdiction because the election was no longer impeachable, but the Court held that it had jurisdiction and said at pp 162-4: "As Senator Wood was not an Australian citizen prior to 3 February 1988 he was not entitled to be nominated for election as a senator: s 163 of the Act. His election and return could not create the legal capacity to be a senator which s 163 denies … A de facto election and return are therefore ineffective to confer the legal status of senator on an unqualified person … a person who lacks the qualifications … cannot be a senator and is therefore incapable of being chosen as a senator. That incapacity does not flow from the making of a judicial declaration that he lacks the requisite qualifications … Senator Wood's election was void." 102 The Court declared a vacancy in the Senate for the place for which Senator Wood had been returned. 103 Section 125(1), read in isolation, appears to prevent any challenge to the appellant's election and consequently to her status as a councillor once the 28 day time limit has expired. However it must be read with related sections, in particular s 132(1), and with insights from the case law. 104 The cases have distinguished between challenges based on disqualifications intrinsic to the person, those based on his or her conduct during the election, and those based on challenges to the counting of the votes and the qualifications of voters. Challenges of the last two kinds can only be entertained in timely proceedings under s 125(1) or its equivalents, but challenges of the former kind have been entertained in other proceedings. 105 Sections equivalent to s 125(1) which enable a parliamentary election to be challenged in judicial proceedings are properly construed as exclusive codes because the courts had no inherent or common law jurisdiction in such cases: McDonald v Keats [1981] 2 NSWLR 268, 274. Any jurisdiction which had not been conferred by statute on a Court of Disputed Returns remained with the relevant House of the Parliament. The position with subordinate elected bodies is very different. The superior courts had inherent or common law jurisdiction over elections to such bodies and the status of their office holders exercisable by the prerogative writs of quo warranto and mandamus: R v Beer [1903] 2 KB 693; Ex parte Attenborough, in re Bent (1868) 5 VLR(L) 103, 105-6. 106 Section 132(1) provides that a person having any of the relevant characteristics "is disqualified from holding office". The disqualification is not limited to the election process. The section provides in substance that a disqualified person, even if otherwise validly elected, cannot hold the office at any time. It prevents the office being filled by a successful disqualified candidate. 107 In my view s 125 makes the election of a disqualified candidate voidable, not void. If the appropriate proceedings are not commenced in time the section, by preventing any legal challenge thereafter, validates the actual election. 108 The question is whether the common law right to challenge a person's status as a councillor, contrary to the prohibition in s 132(1), has been taken away by s 125. 109 There is a presumption that Parliament does not intend, without clear words, to take away the jurisdiction of the superior courts, or rights given by the common law which includes those enforced by quo warranto. 110 The problem of reconciling provisions in the same statute has arisen in the context of legislation which both defines the jurisdiction of a tribunal and restricts judicial review of its decisions for jurisdictional error. In R v Hickman; Ex parte Fox [1945] HCA 53, 70 CLR 598, 616 Dixon J said: "… where the legislature confers authority subject to limitations, and at the same time enacts … [the privative clause] , it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits … necessarily spells invalidity ... In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them . " 111 Sections 125(1) and 132(1) can be reconciled by giving the disqualification in the latter continuing effect throughout the term of office independently of the election process. This does not mean that the election of a disqualified candidate cannot be challenged under s 125(1), but it means that a continuing disqualification can be enforced although the election can no longer be challenged. 112 The cases referred to at [90] are distinguishable because the legislation provided that the election of a disqualified candidate could only be challenged by an election petition, and there was no continuing prohibition on a disqualified candidate holding office. 113 The next question is whether the appellant's continuing disqualification created a casual vacancy. In my opinion it did not because the vacancy created by the election on 22 May 2007, the first after a period of administration, was never filled. 114 This conclusion is supported by ss 133, 134, and 135. Section 133(e) provides that "a councillor" "vacates office" if he or she "becomes disqualified". Section 134 makes provision for a casual vacancy, and by implication this is a vacancy created by s 133. Section 135 enables the Administrative Decisions Tribunal to declare that a particular office of a councillor "has become vacant". 115 The appellant never became "a councillor", she did not "become" disqualified because she was disqualified before the election. She could not vacate an office that she had never held and the office did not "become vacant", it remained vacant. 116 In Re Wood [1988] HCA 22, 167 CLR 145 the Court said at 164: "The election and return of … an unqualified candidate is wholly ineffective to fill a vacant Senate place. Senator Wood's election was void. The return was defective. … A Senate election is not completed when an unqualified candidate is returned as elected. The return does not meet the exigency of the writ … because Senator Wood was incapable of filling the twelfth place." 117 In Sykes v Cleary [1992] HCA 60, 176 CLR 77, 101, which involved a challenge to an election for a seat in the House of Representative, the plurality, with the concurrence of Brennan J (at 108), Dawson J (at 130), and Gaudron J (at 132) referred to Re Wood and said: "That case decided that the election and return of an unqualified candidate are wholly ineffective to fill a vacant Senate place, that the election is not completed when an unqualified candidate is returned and that the purpose of the poll is to choose preferred candidates." 118 In Re Wood at 166 the High Court ordered a special count of the votes for the Senate and applied by analogy s 273(27) of the Commonwealth Electoral Act which directs that votes for a deceased candidate in a Senate election are to be counted to the candidate next in the order of the voter's preference. 119 In Sykes v Cleary, where the plurality said at 102: "… the situation in Re Wood was such as to warrant the conclusion that the special count would reflect the voters' 'true legal intent'. Furthermore, in the light of the group system of voting which applies in Senate elections, it was highly probable, if not virtually certain, that a person who voted for Mr Wood would have voted for another member of his group, had the voter known that Mr Wood was ineligible. The same comment cannot be made in the present case. Here a special count could result in a distortion of the voters' real intentions because the voters' preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent." 120 As a result there had to be a by-election for the seat in the House of Representatives. 121 If Mr Cleary's disqualification had been known in advance the ALP would have endorsed another candidate who, in all probability, would have attracted a majority of the votes cast. 122 Section 180(2) of the Commonwealth Electoral Act applies where a candidate for a seat in the House of Representative dies before polling day after nominations have closed. In such a case the election is deemed to have wholly failed and s 181 requires the issue of a new writ for a supplementary election. 123 The corresponding provision is cl 79 of the Aboriginal Land Rights Regulation which provides: "If a candidate dies after the close of nominations and before polling day in respect of an election: (a) the election is taken to have failed, and (b) the returning officer is to conduct a new election" 124 The relevant analogy in this case is that in Sykes v Cleary, ss 181 and 182 and cl 79 leading to a new election, and not Re Wood and s 273(27) leading to a recount. 125 The return or statement showing the voting at the election for the North Coast region is not in evidence. The Court does not know the number of candidates and cannot determine whether a special count of the votes, assuming that was appropriate and the ballots are still available, would distort the voters' real intentions. 126 The Aboriginal Land Council Regulation 2002 provides in cl 55 for optional preferential voting. If there were 3 or more candidates, the "real intention" of voters who voted for the appellant without indicating a preference for another candidate, or who indicated a second or later preference for the appellant without indicating any further preference, cannot be known. The election for this Region held on 22 May 2007 has failed and there must be a new election to fill the vacancy. 127 For these reasons I would make the following orders:

1. Appeal dismissed. 2. Cross-appeal allowed. 3. Orders 1, 2, 3 and 5 made on 19 October 2009 set aside. 4. In lieu thereof (a) declare that Patricia Helen Laurie is and has been disqualified since 22 May 2007 from holding the office of councillor for the North Coast region in the New South Wales Aboriginal Land Council and that a new election must be held to fill that vacancy. (b) declare that the New South Wales Aboriginal Land Council is entitled to cease paying Patricia Helen Laurie the remuneration and allowances of a councillor of the New South Wales Aboriginal Land Council as referred to in subss 120(5) and (6) of the Aboriginal Land Rights Act 1983 (NSW). 5. Make no order as to the costs of any party in this Court in relation to the appeal or the cross-appeal. **********

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