Nettheim, Garth --- "Thorpe v Minister for Aboriginal Affairs and Others" [1992] AboriginalLawB 11; (1992) 1(54) Aboriginal Law Bulletin 19

• Thorpe V Minister For Aboriginal Affairs And Others

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Thorpe v Minister for Aboriginal Affairs and Others

Federal Court of Australia: Sweeney ACJ, Northrop & Jenkinson JJ.,

Melbourne, 11 December [1990] FCA 496; 1990, 97 ALR 543

Casenote by Garth Nettheim

Section 100 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (the 'ATSIC Act') provides:

Regional Council elections shall be conducted by the Australian Electoral Commission in accordance with:

(a) the provisions of this Act; and
(b) the Regional Council election rules in force at the beginning of the election period.

The definition of 'election period' in s.4 of the ATSIC Act, indicated that the election period began on the day that the Minister, under s.104, fixed a day for the polling. The Minister, on 29 August 1990, fixed 3 November 1990 as the day for the polling. Previously, on 9 July 1990, the Minister under s.113 made Regional Council election rules which took effect from 18 July 1990 - the date of their notification in the Government Gazette, by virtue of the Acts Interpretation Act 1901 (Cth), s.48(1)(b)(iv). The ATSIC Regional Council rules were thus 'in force at the beginning of the election period', 29 August 1990.

Section 48(1) of the Acts Interpretation Act, applied by the ATSIC Act, required that the rules be laid before both Houses of Parliament within 15 sitting days, in default of which they `would cease to have effect. They were so laid before the House of Representatives but not before the Senate. Accordingly, they ceased to have effect on 16 October 1990.

The applicant, on 24 October 1990, instituted proceedings on her own behalf and on behalf of others against the Minister, the Australian Electoral Commission, the Commonwealth Electoral Commissioner and the Commonwealth. She sought orders that the Regional Council elections were void. She also sought interlocutory injunctions to prevent the poll proceeding on 3 November 1990.

On 30 October 1990, Pincus J., in the Federal Court refused interlocutory relief and also held against the applicant's principal submission. She appealed to the Full Federal Court. The appeal was dismissed.

Generally, their Honours, in separate judgements, agreed with Pincus J., that the only requirement of s.100 was that the Regional Council election rules be 'in force at the beginning of the election period'; the rules were in force at that date (29 August 1990) notwithstanding that they ceased to have effect on 16 October 1990.

Northrop J., however, offered the following comment:

"There is no material before the Court explaining why the Regional Council election rules were not laid before the Senate in conformity with the requirements of s.48 of the Acts Interpretation Act. Nevertheless, this failure illustrates an arrogance by the Executive which borders on contempt for the Parliament. The failure is very serious. It is to be condemned. It cannot be condoned. It is a fact which has occurred but it is not for this Court to investigate why it occurred. The Court must look at the effect which results there from, namely the repeal of the election rules, and to determine whether that effect results in the Regional Council elections being void. There is no doubt that if the Regional Council elections are void, it will be necessary for the Parliament to pass new legislation to give effect to its policy of creating the Commission. The time constraints contained in the Act could not be kept since, under sub-section 100(3) of the Act, the latest polling date had to be 5 November 1990. If the elections are void, much confusion would arise and millions of dollars wasted. This however cannot affect the legal position. The Court is required to apply the law. Arguments based on inconvenience or cost cannot be used to condone the results of a failure by the Executive to comply with the law."

For the appellants: A.R. Castan QC, B.A. Keon-Cohen instructed try Holding Redlich.

For the respondents: N.A. Moshinsky QC, Dr R.R.S. Tracey instructed by the Australian Government Solicitor.