Discrimination challenge to council ballot over radioactive waste dump proposal fails
The Federal Court recently dismissed a legal challenge to a council ballot on whether a nuclear storage facility should be built on the Eyre Peninsula. The Kimba District Council (Council) planned to hold a vote to gauge support for the waste dump.
The Council planned to hold a vote to gauge community support among its ratepayers for having radioactive waste stored in their area, after the Federal Government shortlisted two sites near Kimba as possible locations for the facility. The Council planned to conduct the ballot of ratepayers in accordance with section 14 of the Local Government (Elections) Act 1999 (SA) (LGE Act).
Nuclear waste is currently stored at more than 100 sites across Australia. The latest Federal Government proposal is to build a single facility in regional South Australia for all of the nation's waste. In addition to the two sites at Kimba, a third site in Hawker, near the Flinders Ranges, has also been shortlisted.
The Barngarla Determination Aboriginal Corporation (Barngarla), which represents the native title holders in the area, launched legal action against the Council, arguing it contravened the Racial Discrimination Act 1975 (Cth) (RD Act) by excluding native title holders from the ballot.
The franchise for the ballot comprised of those eligible to vote in Council elections under section 14 of the LGE Act. Barngarla did not satisfy the eligibility criteria in section 14 of the LGE Act as it was, inter alia, not a “ratepayer in respect of a rateable property” within the Council area. Further, none of the Barngarla’s members were, by virtue of being native title holders, entitled to be enrolled on the voters roll. A member could only be entitled if they satisfied the criteria in section 14.
Barngarla won an injunction to halt the ballot last year, while the legal challenge was being heard.
However the Court recently ruled (in Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba  FCA 1092) that the Council did not contravene the RD Act by excluding the native title holders from the franchise.
Justice White accepted that the non-inclusion of the Barngarla’s members in the franchise for the ballot involved a distinction or exclusion. However, in dismissing the Barngarla’s application under section 9(1) of the RD Act, his Honour found that the exclusion did not arise by reason of the Aboriginality of Bendigo & District Aboriginal Co-operative’s (BDAC) members, but rather, by reason of their place of residence and the fact that they were not ratepayers.
Justice White held that the Council’s utilisation of the eligibility criteria in section 14 did not involve any differential treatment between non-resident native title holders, on the one hand, and other non-residents who had a property interest in the Council area but were not ratepayers.
In addition, Justice White found that the Council had not contravened section 9(1A) of the RD Act as it was reasonable for the Council to decide that the ballot should be conducted in accordance with the criteria in section 14(1). His Honour stated:
“[The section 14(1) franchise] is the franchise which the Parliament of South Australia has determined is appropriate for the participation of members of the Kimba community in the democratic election of councillors. It is a franchise with 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 judgments about the extent of the enlargement and raised issues concerning the proper identification of those within the expanded franchise. Further, the grant of individual votes to each of [Barngarla’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 decision in Barngarla confirms that South Australian local councils will not be in breach of anti-discrimination legislation by conducting ballots in accordance with section 14 of the LGE Act and similar legislative schemes that operate in Victoria, New South Wales and Western Australia.
Authors: Charles Power & Helen Cankaya
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PRACTICE AND PROCEDURE – application for an interlocutory injunction to restrain the respondent council from conducting a community ballot – where injunction sought pending the outcome of the appeal – where respondent council proposed to conduct a community ballot for the purposes of a process conducted by the Commonwealth Minister responsible for selecting a site for the National Radioactive Waste Management Facility – where ballot proposed to be conducted prior to the hearing of the appeal – where ballot proposed to be conducted in accordance with the franchise expressed in the Local Government (Elections) Act 1999 (SA) – where appellant claimed its members who held native title rights to the land in question were excluded from the ballot in contravention of the Racial Discrimination Act 1975 (Cth) – where primary judge did not accept those claims – whether the appeal would be rendered nugatory if the injunction was not granted – whether there was a strong prima facie case on appeal – whether the balance of convenience favoured the grant of an injunction – application dismissed
Federal Court of Australia Act 1976 (Cth) s 25; National Radioactive Waste Management Act 2012 (Cth) ss 7, 10, 18, 19, 22, 23, Part 2; Native Title Act 1993 (Cth); Racial Discrimination Act 1975 (Cth) ss 8, 9; Local Government (Elections) Act 1999 (SA) s 14
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LOCAL GOVERNMENT POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – POWERS GENERALLY – EXERCISE OF POWERS – GENERALLY – where the council obtained an enforcement order against the respondent due to her failure to comply with public health orders – where the appellant was found to have trespassed by entering the respondent’s property at a time earlier than that specified in the enforcement order – where the magistrate awarded a global amount for both compensation and damages for trespass – where the magistrate failed to indicate the amount attributed under each heading – whether the magistrate’s failure to give reasons identifying the amount allowed under each heading constitutes an error of law
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ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – STAY OF PROCEEDINGS AND INTERLOCUTORY RELIEF – where the applicant seeks judicial review of a decision to impose two conditions on an approval for a material change of use – where the applicant operates a high impact industry in a low impact precinct in the Townsville State Development area and applied to the respondent for approval of its activities – where the respondent granted an approval for two years subject to conditions – where the applicant challenges only the condition limiting the approval to a two year period and a condition limiting vehicle movements to 80 heavy vehicle movements per day – where the respondent cross-applies for a stay or dismissal of the application on the grounds that such relief is inappropriate because the impugned conditions are integral and not severable from the approval as a whole – whether the proceeding should be stayed or dismissed
Acts Interpretation Act 1901 Cth s 15A; Acts Interpretation Act 1954 (Qld) s 9; Judicial Review Act 1991 (Qld) ss 5, 20(2), 23(g), 30(1), 48; State Development and Public Works Organisation Act 1971 (Qld) s 84E(3)
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