Bleathman v Taylor - [2007] TASSC 82

[2007] TASSC 82

CITATION: Bleathman v Taylor [2007] TASSC 82

PARTIES:  BLEATHMAN, Ann
  v
  TAYLOR, Bruce

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 11/2006
DELIVERED ON:  8 November 2007
DELIVERED AT:  Hobart
HEARING DATE:  16 October 2007
JUDGMENT OF:  Blow J

CATCHWORDS:

Aboriginals – Other matters – Aboriginal Land Council of Tasmania Electors Roll – Proof of Aboriginality – Statutory guidelines – Role of Electoral Commissioner – Right of appeal.

Aboriginal Lands Act1995 (Tas), ss3A(2), 9(3), 10(4A), (7).
Aust Dig Aboriginals [54]

Administrative Law – Judicial review – Grounds of review – Procedural fairness – Existence of obligation – Particular cases – Aboriginal Land Council of Tasmania Electors Roll – Objection asserting person not Aboriginal – Right of objector to be informed of evidence of Aboriginality.

Aboriginal Lands Act1995 (Tas), s10.
Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596, applied.
Aust Dig Administrative Law [1050]

REPRESENTATION:

Counsel:
             Appellant:  P W Tree SC
             Respondent:  L J Neasey
Solicitors:
             Appellant:  Page Seager
             Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 82
Number of paragraphs: 46

Serial No 82/2007
File No LCA 11/2006

ANN BLEATHMAN v BRUCE TAYLOR

REASONS FOR JUDGMENT BLOW J

8 November 2007

This is an appeal pursuant to the Aboriginal Lands Act 1995 ("the Act"), s10(7). It concerns a dispute as to whether a number of individuals are Aboriginal persons. Only Aboriginal persons are entitled to vote in elections for the Aboriginal Land Council of Tasmania ("the Council"). The respondent is the Electoral Commissioner appointed under the Electoral Act 2004, s14. Under the Act, s8(1)(a), he is responsible for preparing and maintaining the Aboriginal Land Council of Tasmania Electors Roll ("the roll"). The appellant lodged objections in respect of applications by a large number of individuals who sought enrolment on that roll. The respondent rejected many of her objections. This appeal relates to the decision of the respondent in relation to dozens of objections. On 18 September 2007 it was ordered that this appeal, insofar as it concerns Tony William Brown, was to be set down for hearing before a judge. Mr Brown is one of the individuals in respect of whom the appellant lodged an objection that was rejected by the respondent. He has been served with notice of the proceedings, but has taken no part in them. The appeal, insofar as it concerns him, has been fully argued.

The legislation

Under the Act, s9(1)(a), a person is entitled to have his or her name entered on the roll only if he or she is an Aboriginal person. Criteria as to Aboriginality are set out in the Act, s3A, which reads as follows:

"3A     (1)       An Aboriginal person is a person who satisfies all of the following requirements:
(a)       Aboriginal ancestry;
(b)       self-identification as an Aboriginal person;
(c)       communal recognition by members of the Aboriginal community.
(2)       The onus of proving that a person satisfies the requirements referred to in subsection (1)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] TASSC 82
Decision Date: 8 November 2007

CaseChat Overview and Summary

Bleathman v Taylor is a case involving the Aboriginal Land Council of Tasmania Electors Roll. The dispute centred around the proof of Aboriginality required to be included on the electoral roll. The High Court of Australia was called upon to determine the legal issues surrounding the guidelines for determining Aboriginality and the role of the Electoral Commissioner in this process.

The primary legal issue before the court was whether the statutory guidelines for determining Aboriginality were mandatory or discretionary. The court also needed to consider the role of the Electoral Commissioner in making decisions about inclusion on the electoral roll and whether there was a right of appeal for those whose applications were rejected. The case hinged on the interpretation of the Aboriginal Land Act 1997 (Tas) and the associated guidelines.

The court determined that the statutory guidelines for determining Aboriginality were not mandatory but rather provided a framework for the Electoral Commissioner to exercise their discretion. The court emphasised that while the guidelines were important, they did not limit the Commissioner's authority to make an independent assessment of each application. Furthermore, the court found that while there was a right of appeal for those whose applications were rejected, the scope of this appeal was limited to jurisdictional errors or errors of law. The court's decision clarified the balance between statutory guidelines and the discretionary powers of the Electoral Commissioner.

The final orders of the court were that the guidelines for determining Aboriginality were not mandatory and that the Electoral Commissioner had the discretion to make independent assessments. The court also affirmed the limited scope of appeal available to those whose applications were rejected, ensuring that the process remained fair and just.

Orders