Confirmation - It is not discriminatory for LG voting eligibility criteria to exclude native title holders

15 July 2019

We are pleased to advise that our client, the District Council of Kimba, has been vindicated in its reliance upon local government elector criteria by successfully defending a challenge by the Barngarla Determination Aboriginal Corporation RNTBC (‘BDAC’) in the Federal Court of Australia.

The background, as many of our readers will be aware, is the Federal Government process to determine an appropriate site for a National Radioactive Waste Management Facility. Following nominations by landowners, two (2) sites in the Council area are under consideration by the Government.

The Federal Court judgment is relevant and significant, not only for the Council but for all SA councils. It confirms the appropriateness of the Council’s use and the validity of section 14 of the Local Government (Elections) Act 1999 (‘LGE Act’) by rejecting the assertion that it is discriminatory in its terms and operation.

If it had been found that the Council had breached the Racial Discrimination Act 1975 (Cth) (‘RD Act’) in utilising the section 14 franchise for the ballot, it might have resulted in the invalidation of section 14 as an unlawful discriminatory statutory provision  This would be on the basis that it fails to recognise native title landowners as eligible voters in local government elections or polls.

To determine community sentiment toward establishing the proposed Facility within the Council area, the Federal Government requested that the Council conduct a non-binding ballot of its community. That is, the Council ascertain whether a majority of its community were supportive of the proposal. The Council agreed to this request and resolved to conduct a non- binding ballot in reliance on the eligibility criteria in section 14(1) of the LGE Act.

Section 14 of the LGE Act provides that to vote in local government elections, a person must be of or above the age of majority (18 years) and meet certain qualifying criteria. To be an ‘elector’ a person must also be registered on the House of Assembly roll as a resident within the Council area or registered on the Council’s voters roll in accordance with the various criteria which includes being a ‘ratepayer’ (being natural persons not registered on the House of Assembly roll, body corporates and groups).

Importantly, for the purposes of this challenge, native title holders are not eligible to participate in the ballot because land subject to native title is not rateable land. However, it is to be observed that a native title holder will be eligible to vote in circumstances where they also satisfy at least one of the section 14 criteria. In this instance, however, none of the 211 BDAC members resided within the Council area, or were otherwise eligible to be enrolled on the Council voters roll, as at 30 June 2018.

Accordingly, the Council decision to utilise the section 14 eligibility criteria, meant that the members of BDAC were not eligible to vote in the ballot.

Despite being provided with other opportunities to express their views to the Federal Minister, including through its own ballot, BDAC chose to commence proceedings against the Council in the Federal Court. BDAC alleged that the Council had breached the RD Act. By implication, it was alleged that section 14 of the LGE Act was discriminatory in its terms and operation.

The question to be answered by the Federal Court was:

Whether the passing of resolutions for, and the facilitation of the conduct of, a non- binding ballot by a local government authority on a franchise constituted by the persons entitled to vote in elections for the authority, and which excludes native title holders, is unlawful by reason of sub 9(1) and (1A) of the [RD Act].¹

In dismissing the BDAC application, His Honour Justice White found that the Council had not acted contrary to section 9(1) of the RD Act insofar as:

the Council’s continuing decision that BDAC’s members should not be included in the ballot was not made because of their Aboriginality, but as part of a more general discussion about whether the s14(1) franchise should be expanded for the purposes of the ballot. The Council had to make a decision as to the categories of persons who constituted the Kimba “community” for the purposes of the ballot. It appreciated that once it departed from the s14(1) franchise, a number of difficulties and uncertainties arose. It is understandable that the Council sought to avoid those difficulties by adhering to the provisions with which it and the community were familiar, which has an objective existence, and which had a high level of transparency and independence from the Council.²

(our emphasis)

In addition, White J found that the Council had not contravened section 9(1A) of the RD Act as it was reasonable to adopt the eligibility criteria in section 14 of the LGE Act. In this regard, His Honour stated that the section 14 franchise:

is the franchise which the Parliament of South Australia has determined is appropriate for the participation of members in the Kimba community in the democratic election of councillors and for the conduct of polls pursuant to s9. It is a franchise which the members of the community are familiar, has the advantages of being objectively determined and is transparent. An enlargement of the franchise for the purpose of the ballot would have required a number of subjective judgements about the extent of the enlargement and raised issues concerning the proper identification of those within the expanded franchise. Further, grant of individual votes to each of BDAC’s members would have involved a distortion of the franchise because each native title holder would have an individual vote whereas it is only the designated members of other groups who may vote…The Council was entitled to take into account BDAC’s stated intention that it would arrange its own ballot of its members.³

(our emphasis)

BDAC has until Friday 2 August 2019 to decide whether to appeal the judgment.

The judgment of White J is available  here.

If you have any questions in relation to this matter, please contact Natasha Jones on 08 8113 7102 or email njones@kelledyjones.com.au.

 

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

1092, paragraph 1.

2 Ibid, paragraph 93.

3 Ibid, paragraph 130.