Bracegirdle v Aurukun Shire Council - [2009] QMC 26

LOCAL GOVERNMENT (ABORIGINAL LANDS) APPEALS MAGISTRATE

CITATION:

Bracegirdle v Aurukun Shire Council [2009] QMC 26

PARTIES:

DANIEL LUKE BRACEGIRDLE

(appellant)

v

AURUKUN SHIRE COUNCIL

(respondent)

FILE NO/S:

MAG240377/09(8)

DIVISION:

Magistrates Courts

PROCEEDING:

Appeal under section 24(2) of the Local Government (Aboriginal Lands) Act 1978

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

10 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

10 December 2009

MAGISTRATE:

Judge Butler SC, Chief Magistrate

ORDER:

1. The appeal is allowed.

2. The decision of the respondent of 14 August 2009 that the appellant be given notice to remove himself from the Shire of Aurukun forthwith and not re-enter the Shire for a period of six (6) months is set aside.

3. The notice of eviction dated 14 August 2009 giving effect to the decision of the Council is set aside.

4. No order is made as to costs.

CATCHWORDS:

ABORIGINALS – restrictions on non-aboriginals residing on aboriginal land - where limited classes of persons authorised to reside in Shire and a person intermarried with a local Aboriginal person is authorised - whether the term “intermarried” is confined to those who have entered into a registered marriage under the Marriage Act 1961 (Cth) – whether those in a genuine domestic relationship are “intermarried” within the meaning of the Act – power of Council to remove a person from the Shire

PRACTICE AND PROCEDURE - COSTS – whether Local Government (Aboriginal Lands) appeals magistrate has power to award costs – whether Uniform Civil Procedure Rules 1999 apply to appeals under the Local Government (Aboriginal Lands) Act 1978

Local Government (Aboriginal Lands) Act 1978

Judicial Review Act 1991

Judicial Act 1903 (Cth)

Acts Interpretation Act 1954

Uniform Civil Procedure Rules 1999

Justices Act 1886

Wyatt v Albert Shire Council [1987] 1 Qd R 4

Hurley v Clements Ors (No 2) [2009] QCA 207

COUNSEL:

P Morreau for appellant

DJ Campbell SC for respondent

SOLICITORS:

Boe Lawyers for appellant

Bottoms English Lawyers for respondent

Introduction

The appellant is a non-aboriginal man who has resided in the Shire of Aurukun for the better part of 10 years during which time he has maintained a defacto relationship with an Aboriginal resident of that Shire.

He appeals against a decision of the respondent Shire Council directing him to remove himself from the Shire and not re-enter it for a period of 6 months.

The respondent gave that direction in the belief that the appellant was not authorised to enter in, reside in or be in the Shire of Aurukun pursuant to the provisions of sections 19 and 20 of the Local Government (Aboriginal Land) Act 1978 (“the Act”)[1]. The appellant asserts that he has “intermarried with an Aborigine who is authorised…to reside in the Shire of Aurukun” and is thus authorised by s 19(f) of the Act to reside and remain in the Shire.
[1] Exhibit “MFV-5” to Affidavit of Melody Valentine, filed 25 September 2009.

The appeal

The Appeal is brought under s 24(2) of the Act. That subsection provides…

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.

Continue reading Bracegirdle v Aurukun Shire Council

Details

AGLC: Bracegirdle v Aurukun Shire Council [2009] QMC 26
Case: [2009] QMC 26
Decision Date: 10 December 2009

CaseChat Overview and Summary

In the case of Bracegirdle v Aurukun Shire Council, the appellant sought to challenge a decision by the Aurukun Shire Council to evict him from the Shire, which is designated Aboriginal land. The Council had issued a notice for the appellant to vacate the Shire and refrain from re-entry for six months, based on its interpretation of the local laws that restrict non-Aboriginal residents. The appellant argued that he was married to a local Aboriginal woman and thus should be considered an authorised resident. The central issue before the court was the interpretation of the term "intermarried" under the relevant legislation and whether it should be confined to legally registered marriages or if it could encompass genuine domestic relationships. Additionally, the court had to determine if the Local Government (Aboriginal Lands) Appeals Magistrate had the authority to award costs and if the Uniform Civil Procedure Rules 1999 applied to appeals under the Local Government (Aboriginal Lands) Act 1978.

The court found that the term "intermarried" was not limited to registered marriages under the Marriage Act 1961 (Cth) but could include genuine domestic relationships. This interpretation was based on the broader context of the legislation and the intent to protect and preserve the Aboriginal community. Regarding the power to award costs, the court concluded that the Appeals Magistrate did have the authority to do so, even though the Uniform Civil Procedure Rules 1999 did not explicitly apply to such appeals. The court set aside the Council's decision to evict the appellant, finding that he was indeed an authorised resident by virtue of his domestic relationship with a local Aboriginal woman.

The appeal was allowed, and the decision of the respondent that the appellant be given notice to remove himself from the Shire of Aurukun forthwith and not re-enter for a period of six months was set aside. The notice of eviction issued on 14 August 2009 was also set aside. No order was made regarding costs.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the respondent of 14 August 2009 that the appellant be given notice to remove himself from the Shire of Aurukun forthwith and not re-enter the Shire for a period of six (6) months is set aside.

3. The notice of eviction dated 14 August 2009 giving effect to the decision of the Council is set aside.

4. No order is made as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Bracegirdle v Aurukun Shire Council [2009] QMC 26
PARTIES:	DANIEL LUKE BRACEGIRDLE (appellant) v AURUKUN SHIRE COUNCIL (respondent)
FILE NO/S:	MAG240377/09(8)
DIVISION:	Magistrates Courts
PROCEEDING:	Appeal under section 24(2) of the Local Government (Aboriginal Lands) Act 1978
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	10 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	10 December 2009
MAGISTRATE:	Judge Butler SC, Chief Magistrate
ORDER:	1. The appeal is allowed. 2. The decision of the respondent of 14 August 2009 that the appellant be given notice to remove himself from the Shire of Aurukun forthwith and not re-enter the Shire for a period of six (6) months is set aside. 3. The notice of eviction dated 14 August 2009 giving effect to the decision of the Council is set aside. 4. No order is made as to costs.
CATCHWORDS:	ABORIGINALS – restrictions on non-aboriginals residing on aboriginal land - where limited classes of persons authorised to reside in Shire and a person intermarried with a local Aboriginal person is authorised - whether the term “intermarried” is confined to those who have entered into a registered marriage under the Marriage Act 1961 (Cth) – whether those in a genuine domestic relationship are “intermarried” within the meaning of the Act – power of Council to remove a person from the Shire PRACTICE AND PROCEDURE - COSTS – whether Local Government (Aboriginal Lands) appeals magistrate has power to award costs – whether Uniform Civil Procedure Rules 1999 apply to appeals under the Local Government (Aboriginal Lands) Act 1978 Local Government (Aboriginal Lands) Act 1978 Judicial Review Act 1991 Judicial Act 1903 (Cth) Acts Interpretation Act 1954 Uniform Civil Procedure Rules 1999 Justices Act 1886 Wyatt v Albert Shire Council [1987] 1 Qd R 4 Hurley v Clements Ors (No 2) [2009] QCA 207
COUNSEL:	P Morreau for appellant DJ Campbell SC for respondent
SOLICITORS:	Boe Lawyers for appellant Bottoms English Lawyers for respondent