Neate, Graeme --- "Blurton and Others v Minister for Aboriginal Affairs (ATSIC Regional Council elections - failure to hold a secret ballot - whether election invalid)" [1992] AboriginalLawB 12; (1992) 1(54) Aboriginal Law Bulletin 19

• Blurton And Others V Minister For Aboriginal Affairs
• Atsic Regional Council Elections-Failure To Hold A Secret Ballot-Whether Election Invalid

---

Blurton and Others v Minister for Aboriginal Affairs

ATSIC Regional Council elections - failure to hold a secret ballot - whether election invalid

Federal Court of Australia - French J

17 May [1991] FCA 204; 1991, 101 ALR 350

Casenote by Graeme Neate

In 1990 the first elections for regional councils of the Aboriginal and Torres Strait Islander Commission were held. The elections were conducted in accordance with regional council election rules made pursuant to the Aboriginal and Torres Strait Islander Act 1989 (Cth) and with the requirements of the Act.

Section 109 of the Act requires that voting shall be by secret ballot.

The validity of the elections may be disputed by petition to the Federal Court. A petition may be signed by a candidate or a qualified elector or may be filed by the Australian Electoral Commission. The Federal Minister for Aboriginal Affairs may refer to the Court any question respecting the qualification of a member of a regional council or a vacancy in a regional council.

There was a requirement for the elections that electors endorse their names on the voter card envelope in which ballot papers were to be placed.

A request was made to the Minister to refer to the Federal Court a question whether the secret ballot provision has been breached by that requirement. The Minister refused to accede to the request.

The applicants applied to the Federal Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order to review the Minister's decision not to refer the matter to the Court.

Mr Justice French dismissed the application.

In summary, he held that:

"(a) the Minister had made a decision within the meaning of the Adminstrative Decisions (Judicial Review) Act 1977 (Cth). The decision was made under an enactment and was amenable to review;

(b) the preliminary issue was a matter of the proper construction of an Act and did not depend upon any question which would require evidence to be adduced. It was appropriate that the issue be decided pursuant to 0.29 of the Federal Court Rules;

(c) the question whether the elections were validly conducted according to the secrecy requirements of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) is not a question respecting the qualifications of the elected members of the regional council, nor is it a question respecting vacancies. It is not a question which can be referred to the Federal Court under s.17 of Schedule 4 of the Act. There can, therefore be no reviewable error arising out of the Minister's refusal to refer the question."

For the applicant: J.L. Cameron instructed by Aboriginal Legal Service of WA (Inc.)

For the respondent: C.J. Pullen QC and P. Thompson instructed by the Australian Government Solicitor.