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Inside track: Local Government

21 October 2019

#Local Government

Inside track: Local Government

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 [2019] 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.”

Key point

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

In the media

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In practice and courts

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Central Coast Council v Armstrong [2019] FCA 1613
Pursuant to s 133(9) of the Bankruptcy Act 1966 (Cth), the property at 4 Turners Beach Road, Turners Beach in Tasmania as is more particularly described in Certificate of Title Volume 8179 Folio 1 vest in the Central Coast Council for the purposes of sale by the Central Coast Council of the property for unpaid rates and otherwise in accordance with the provisions of s 137 of the Local Government Act 1993 (Tas).
The Applicant’s cost of this application have been incurred by it in proceeding under Division 11 of the Local Government Act 1993 (Tas).

Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1585
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


Isaac Regional Council v Warner [2019] QDC 196
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
LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – POWERS GENERALLY – EXERCISE OF POWERS – GENERALLY – where the respondent claimed compensation for items of value unnecessarily disposed of from the property – whether the power to claim compensation under s 422 of the Public Health Act was engaged

Gold Coast City Council v Anderson [2019] QMC 8

Goodsell Earthmoving Pty Ltd v Coordinator-General [2019] QSC 243
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)


Consumer Goods (Quad Bikes) Safety Standard 2019
10/10/2019 – This safety standard prescribes requirements for quad bikes under the Australian Consumer Law


Subordinate legislation as made – 04 October 2019
No 196 Planning (Infrastructure Charges Register and Other Matters) Amendment Regulation 2019
The Amendment Regulation will provide improved transparency in the infrastructure charging and planning framework by requiring local governments to provide additional information in the infrastructure charges register.

No 196 Environmental Protection (Rehabilitation Reform) Amendment Regulation 2019
This Regulation amends the Environmental Protection Regulation 2019 to implement the rehabilitation reforms under the Environmental Protection Act 1994 (EP Act) to: support decisions under the EP Act in relation to Progressive Rehabilitation and Closure Plan (PRCP) schedules; support the implementation of Public Interest Evaluations; and set the date for commencement of the PRCP framework as 1 November 2019.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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