Bernardi, Gus --- "The Right to Vote Cannot be Taken Away: The Registrar of Aboriginal Corporations v Jeanette Barker" [1998] IndigLawB 30; (1998) 4(10) Indigenous Law Bulletin 18

The Right to Vote Cannot be Taken Away:

The Registrar of Aboriginal Corporations v Jeanette Barker

Federal Court (Full Court), Davies, Wilcox and Branson JJ

Un/Reported

23 December 1997, Sydney

NG 1006 of 1997

Casenote by Gus Bernardi

Northern Star Aboriginal Corporation and North Star Aboriginal Corporation are both located in Brewarrina NSW and together employ over 105 Aboriginal workers with a combined budget of over $2 million in contracts and funding from ATSIC, local government and community organisations. On 21 May 1997 the Registrar of Aboriginal Corporations, under s71 of the Aboriginal and Councils Associations Act 1976 (Cth) ('the Act'), appointed an Administrator for each of these corporations. On 3 November 1997, Jenny Barker, the Applicant in the proceedings and member of both corporations, was informed that the Registrar was going to conduct an election on the 11 November 1997, under s77D of the Act, with the purpose of electing the Governing Committees for both corporations. However, the notice specified that notwithstanding the Rules for both Corporations no postal votes or proxy votes would be accepted for the elections. An application was therefore made by Ms Barker under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which sought a review of the Registrar's decision not to allow proxy and postal votes for the elections. The application was heard at first instance by Whitlam J[1]

and later on appeal by Davies, Wilcox and Branson JJ of the Federal Court.

Operation of s77D

Section 77D is one of the provisions included under the 1992 amendments to the Act. The section provides that the Registrar can call an election for the purposes of returning the Corporation to normality, that is, to the control of an elected Governing Committee. Under the Act the word 'election' is undefined. In seeking a clarification on the operation of s77D argument turned on not only the ambit of its definition but also on its relationship with other provisions in Part III and Part IV (which relate to general meetings and provide the mechanism for electing members of the Governing Committee), most importantly s58B of Part IV. Counsel for the Registrar argued that the word election should be read narrowly and that s77D should be interpreted without any limiting reference to s58B. In other words, that the Registrar, when calling for a s77D election, should have unfettered discretion as to the conduct of the election and over which of the Corporation's rules are to be operational, in this instance, rules concerning proxy and postal votes. Counsel for Ms Barker argued that s77D should be read in the context of the Act's objects, that is, to further Aboriginal self-determination by providing for a system of self-management. He submitted that s77D is limited by s58B which would operate to restrict the Registrar to conduct the election according to the corporation's constitution.

Apart from legal argument, the Registrar's rationale in seeking to deny a corporation's members the right, as provided under their rules, to proxy votes and postal votes under a s77D election is indicated in his affidavit, where he says that 'most' Aboriginal Corporations which have administrative difficulties suffer from 'factional disputes' which often result in a majority using 'intimidation' and 'physical violence' against a minority (from his affidavit quoted in Whitlam's J judgment at p 5). To fulfil his role in an 'effective way' he states that he would need to be:

'independent and have flexibility in determining the best way to meet a particular Corporation's difficulties. As part of that there is a need for wide powers to determine the most appropriate form of an election to be conducted under section 77D of the Act and in deciding the details of that elections particular requirements'.

The Registrar added:

'That although there may be a number of alternative ways to have an election, namely solely by post, at a polling booth, or at a gathering of members, if the last mentioned method was chosen and it alone was subject to the rules of the Corporation that would significantly interfere with the flexibility of my powers...'

Whitlam J

At first instance, Whitlam J rejected the Registrar's submission and made the order that elections 'be held at a general meeting of each corporation.'(p 12) His Honour found that a s77D election must be held in accordance with the terms of s58B(8) which states that with regard to general meetings, the rules must make provision for, amongst other things, voting by proxy. In support of this, Whitlam J observed that the Act 'entrenches' under Part IV 'key membership rights.' Also, that unlike s23 of the Act, no provision is made under s77D to either fix the number of officers to be filled or to determine the manner of the election. Further, 'the Act evinces the plainest intention that members be given effective control over the running of associations ... Section 58B is the core provision for achievement of this goal'. Taken together, his Honour held that the answer to the question 'must an election under s77D be held at a general meeting of each corporation?' be in the affirmative 'because, only then will a member who is unable to attend in person at a time and place fixed by the respondent for the elections ... be able to exercise the key rights of membership recognised in s49A of the Act.'

Davies, Wilcox and Branson JJ

The Registrar's appeal was dismissed by the Full Federal Court, which varied Whitlam J's order from holding the elections at a general meeting to:

'(i) a general meeting of the relevant association; or

(ii) at an election otherwise conducted in which all members of the association have a reasonable opportunity of participation and the right to be represented by a duly appointed agent'.

The change signified the Full Court's disagreement with Whitlam J's reasoning that a s77D election is be run according to s58B.

For Davies L the Registrars power under s77D must be interpreted in light of common law principles. Such a power is to be exercised 'for the benefit of all members' of the company' (Dixon J in Peters' American Delicacy Company Ltd v Heath [1939] HCA 2; (1939) 61 CLR 457 at 504-5) or 'for the benefit of a company as a whole' (Mason CJ, Brennan, Deane & Dawson JJ in Gambotto v WCP Limited [1995] HCA 12; (1995) 182 CLR 432 at 443-4). 'Therefore', observed Davies, 'the interests of all members must be respected, including their right to nominate a proxy if the rules so provide'(p 2). Davies J again referred to Dixon's J judgment in Peters' American Delicacy Company Ltd v Heath to describe a shareholders' right to vote as 'an incident of property' (p 2). Although such a position is derived from share issuing corporations, his Honour affirms that in the case of non-share issuing corporations 'each member's right to vote at a general meeting of the corporation was a right which the Registrar should have respected' (p 2). On this point Davies J avoided any reference to the High Court's decision in Gambotto v WCP Ltd where the meaning of 'valuable propriety rights attaching to shares' was not considered and therefore left open (Ford's Principles of Corporation Law 8th ed. HA Ford, RP Austin and IM Ramsay, 1997: Butterworths, Sydney p 493). Finally, his Honour drew attention to the legislative intent behind s58B(8) and the 24 hour notice requirement of both associations' rules which recognise that voting at general meetings may be undertaken by proxy due to the 'the tyrannies of distance and the difficulties which some members ... might have in attending a meeting in a particular town on a stipulated day' (p 5).

As with Davies J, Branson J takes the relevancy of s58B(8) as evidence of the legislature's contemplation of proxy voting. However, unlike like Davies, Branson J does not approach her interpretation on the operation of a s77D election from common law principles taken from share issuing companies, but instead, from the position that the Registrar's power must be exercised in a manner which ensures that an association's electors obtain a fair opportunity to vote. In this sense her approach is more expansive. She states that 'the Registrar may conduct an election pursuant to s77D of the Act by any means appropriate to give the relevant electors a fair opportunity to select by vote the persons to hold the offices to be filled by the election' (p 9). According to Branson J such means 'will involve the calling of a meeting of the relevant association' with s58B(4) providing the Registrar with the machinery to call the meeting. She warns, however, that for a s77D election to be valid the Registrar must provide 'all potential electors a fair opportunity to select by vote the persons to fill the relevant offices' (p 9).

As with Davies and Branson JJ, Wilcox J demands that a s77D election must satisfy certain minimal requirements. Such an election, however, need not require a special general meeting. The reason he offers is that the meaning of 'election' which although not defined in the Act 'bears its ordinary English meaning' (p 9). An election, therefore, need not require a gathering of participants. For instance, it can refer to 'situations where electors cast their votes at polling booths ... or by postal ballot'(p 9). If the Registrar holds such an election, then 'the selected manner must be one that will offer all entitled persons a reasonable opportunity of participation'(p 9). It would appear for Wilcox J that if the Registrar calls such a meeting, then the rules of the association will govern the meeting, which includes proxy voting. However, since the 'rules must realistically reflect the situation of the electors'(p 9), the Registrar may also use other procedures in calling an election.

Going further than Davies and Branson JJ, Wilcox J, explores how the Registrar's attempt to deny both associations' electors their right to proxy votes was an infringement of their common law right to appoint an agent. He observes that Stirling J in Jackson & Co v Napier (1886) 35 Ch D 162 at 172 pointed out that generally, 'every person who is sui juris has a right to appoint an agent for the purpose whatever, and-can do so when he is exercising a statutory right no less than when he is exercising any other right' (p 9). According to his Honour this principle has been 'adopted and applied in Australian [appellate] courts (p 9) He therefore concludes that 'there is nothing in the Aboriginal Councils and Associations Act that excludes the application of the common law principle expounded by Stirling J' (p 10). In effect, if an election is held at a general meeting, the common law rule is displaced by the provision to proxies within the rules of association, but he adds, 'if the election is conducted otherwise than at a general meeting, an elector could authorise another person (whether or not a member of the association) to vote on his or her behalf (p 10).

Conclusion

In discussing the operation of s77D, Whitlam J's observation that 'the Rules are, broadly speaking, drawn with a majoritarian view of corporate governance and the familiar way in which companies appoint each director by separate resolution'(p 12). This highlights that, although the Act allows for rules based on Aboriginal custom, it is the western model of self-governance which has come to prevail. The various approaches by Davies, Branson, and Wilcox, JJ continue this 'majoritarian' view. Ironically, although the Act has come to impose a 'majoritarian view of corporate governance', the Registrar has sought to exercise his discretion in a manner which denies indigenous electors under this Act their access to rights enshrined both by statute and common law. Dr Jim Fingleton, who recently conducted a review of the Aboriginal Councils and Associations Act, has warned that the broad discretion and administrative powers of the Registrar operate to entrench 'paternalistic control and bureaucratic centralism' ('Back of Beyond: the Review of the Aboriginal Councils and Associations Act 1976 in perspective', ILB Vol.4 No. 6 October 1997). The case also indicates how indigenous organisations and communities are conceptualised as a 'problem' warranting external intervention and control.

[1] Jeanette Barker v The Registrar of Aboriginal Corporations, Federal Court, Sydney, Unreported, 10 November 1997, NG 920 of 1997