Gibbs v Capewell

The petitioner, Desmond Gibbs, sought a declaration that the election of Lyle Capewell as a Roma Ward representative on the Roma Regional Council of the Aboriginal and Torres Strait Islander Commission (ATSIC) was void. Gibbs argued that Capewell was not an "Aboriginal person" as defined by the Aboriginal and Torres Strait Islander Commission Act 1989, and thus was ineligible to stand for election. Drummond J determined that the term "Aboriginal person" in the Act refers to descendants of the original inhabitants of Australia before British settlement. Drummond J concluded that while a person must possess some degree of Aboriginal descent to be considered an "Aboriginal person," the degree of descent alone is not sufficient. Instead, a combination of factors, including the degree of descent, self-identification as an Aboriginal, and recognition by the Aboriginal community, must be considered to determine if a person qualifies as an "Aboriginal person" under the Act. Drummond J decided not to make a formal order at that stage, instead deferring the decision until the final outcome of the petition.