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.

Findings

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 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.

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