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Gibbs v Capewell

Gibbs v Capewell

Case [1995] FCA 25 3 February 1995

Constitutional Validity

Aboriginal and Torres Strait Islander Commission Act 1989

Aboriginal person

Native Title

Self-identification

Community recognition

Constitutional Law

Indigenous Peoples & Native Title Law

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CATCHWORDS

DISPUTED ELECTION PETITION - meaning of "Aboriginal person"

Aboriginal and Torres Strait Islander Commission Act 1989 - preamble, ss 3, 4, 7, 91, 94, 101, 101(a), 102, 102(1)(a), clause 10 of Schedule 4
Commissions of Inquiry Act 1950 (Qld)
Constitution - s 51(xxvi)
Royal Commissions Act 1902 (Cth)

Attorney-General (Cth) v State of Queensland (1990) 94 ALR 515 Discussed
Re Bryning [1976] VR 100 Referred to
Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625 Referred to
Landsal Pty. Ltd. (In liquidation) v REI Building Society (1993) 41 FCR 421 Referred to
Mandla (Sewa Singh) v Dowell Lee [1983] 1 QB 1 Referred to
Ofu-Koloi v The Queen (1956) 96 CLR 172 Referred to
State of Queensland v Wyvill (1989) 90 ALR 611 Discussed
Wacando v The Commonwealth (1981) 148 CLR 1 Referred to

Desmond Gibbs
v Lyle Capewell & Ors.
QG 10 of 1994

Drummond J
Brisbane
3 February, 1995

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 10 of 1994
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

IN THE MATTER OF a disputed election under the
ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
ACT 1989

BETWEEN: DESMOND GIBBS

Petitioner

AND: LYLE CAPEWELL

First Respondent

AND:AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

AND:MINISTER FOR ABORIGINAL AND ISLANDER
AFFAIRS

Respondent by Election

Coram:    Drummond J
Date:     3 February, 1995
Place:    Brisbane

REASONS FOR JUDGMENT

The petitioner seeks an order pursuant to clause 10 of Schedule 4 to the Aboriginal and Torres Strait Islander Commission Act 1989 ("the Act") that the election of the Roma Ward of the Roma Regional Council of the Aboriginal and Torres Strait Islander Commission held on 4 December, 1993 be declared void or, alternatively, that the election of the first respondent be declared void on the grounds that:

(a)the first respondent was not qualified to stand for election under s. 102 of the Act because he is not an "Aboriginal person" or "Torres Strait Islander", as is required by s. 102(1)(a) and s. 101(a); and

(b)votes were cast by persons who were not entitled to vote under s. 101 of the Act because they were not "Aboriginal persons" or "Torres Strait Islanders".

I directed that the question of the true meaning of the expression "Aboriginal person" in the Act be determined as a preliminary issue in these proceedings. No party was concerned with the construction of the term "a Torres Strait Islander" in the Act: the term does not relate to any live issue in this litigation.

The petitioner submitted that the term "Aboriginal person" in the Act means a descendant of those people who inhabited Australia at or before the time of British settlement. The third respondent made a similar submission but also contended that biological descent was by itself "a necessary, and sufficient, condition for eligibility to vote as an Aboriginal person". The difference between the positions adopted by the petitioner and the Minister is that the Minister submitted that any degree of Aboriginal genetic material, no matter…

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 Gibbs v Capewell

Details

AGLC: Gibbs v Capewell [1995] FCA 25
Case: [1995] FCA 25
Decision Date: 3 FEBRUARY 1995

CaseChat Overview and Summary

In the case of Gibbs v Capewell, the Federal Court of Australia was asked to determine the meaning of the term "Aboriginal person" as used in the Aboriginal and Torres Strait Islander Commission Act 1989. The petitioner, Desmond Gibbs, argued that the first respondent, Lyle Capewell, was not qualified to stand for election under the Act as he was not an "Aboriginal person" or "Torres Strait Islander". The petitioner also claimed that some voters in the election were not entitled to vote as they were not "Aboriginal persons" or "Torres Strait Islanders". The court had to decide whether the term "Aboriginal person" referred to a person with a certain degree of Aboriginal genetic material or whether it also took into account cultural considerations such as self-identification and acceptance by the Aboriginal community.

The court found that the term "Aboriginal person" in the Act referred to a person who is a descendant of the original inhabitants of Australia prior to European settlement. The court rejected the argument that a person without any Aboriginal genes but who identified as an Aboriginal and was accepted by the Aboriginal community could be considered an "Aboriginal person" for the purposes of the Act. The court also found that the term "Aboriginal person" included not only full blood descendants of the original inhabitants but also persons who possessed some Aboriginal genetic material. However, the court held that while some degree of Aboriginal descent is essential, a small degree of such descent is not sufficient by itself. Cultural considerations such as genuine self-identification as an Aboriginal and Aboriginal communal recognition as such may also be relevant in determining whether a person is an "Aboriginal person" for the purposes of the Act.

Orders