In the Matter of The aboriginal Lands Act 1995 and In the Matter of Marianne Watson
[2001] TASSC 81
•3 August 2001
[2001] TASSC 81
CITATION:In the Matter of The aboriginal Lands Act 1995 and In the Matter of Marianne Watson [2001] TASSC 81
PARTIES: ABORIGINAL LANDS ACT 1995, In the matter of
and
WATSON, Marianne
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 40/2001
DELIVERED ON: 3 August 2001
DELIVERED AT: Hobart
HEARING DATE: 23 July 2001
JUDGMENT OF: Cox CJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant: Applicant in person
Respondent: L J Neasey
Solicitors:
Appellant:
Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 81
Number of paragraphs: 7
Serial No 81/2001
File No LCA 40/2001
IN THE MATTER OF THE ABORIGINAL LANDS ACT 1995
AND IN THE MATTER OF AN OBJECTION TO THE ENTRY ON
THE ABORIGINAL LAND COUNCIL OF TASMANIA ELECTORS ROLL
OF MARIANNE WATSON
RULING COX CJ
3 August 2001
In this matter the appellant Marianne Watson instituted an appeal pursuant to the Aboriginal Lands Act 1995 ("the Act"), s10(6) against the upholding by the Chief Electoral Officer of an objection to her name being entered in the Aboriginal Land Council of Tasmania Electors Roll. The notice of appeal, when filed, bore the title "Marianne Watson, appellant and David Farrell, Chief Electoral Officer, Tasmanian Electoral Office, respondent". For reasons which I shall briefly deal with below, the notice of appeal, in compliance with Rules of the Supreme Court, r705(2), should be entitled in the matter of the Act and in the matter of the proceeding in which the determination to uphold the objection was made. That proceeding was constituted by the lodging of an objection to the appellant's name being entered on the Roll, the objection thereby calling for the determination to be made by the Chief Electoral Officer.
The Act, Pt 2, Div 1, establishes the Aboriginal Land Council of Tasmania which is constituted by eight Aboriginal persons drawn from various regions. Division 2 deals with the election of members of the Council. Section 8 requires the Chief Electoral Officer to prepare an Aboriginal Land Council of Tasmania Electors Roll. Section 9 provides that a person is to have his or her name entered on the Roll if the person (a) is an Aboriginal person; (b) resides in the electoral area in respect of which the person applies to have his or her name entered on the Roll; and (c) has attained the age of 18 years. Section 9(3) requires the Chief Electoral Officer, in consultation with such persons as the Chief Electoral Officer considers necessary, to prepare guidelines concerning the eligibility of a person to have his or her name entered on the Roll on the basis that the person is or is not an Aboriginal person; and subs(4) requires the Chief Electoral Officer to make those guidelines available to any person who requests them. A person entitled to and who wishes to have his or her name entered on the Roll must lodge an application in an approved form with the Chief Electoral Officer.
Section 10(1) provides:
"10 (1) The Chief Electoral Officer is to enter on the Roll the names of all Aboriginal persons who have lodged a properly completed enrolment form with the Chief Electoral Officer."
By s10(3), the Chief Electoral Officer is required to give public notice stating that the Roll has been prepared, that it may be inspected and that objections to the inclusion of the name of a person on the Roll, or the exclusion of the name of a person from the Roll on the basis that the person is or is not an Aboriginal person, may be lodged with the Chief Electoral Officer within a specified time. Section 10(4) provides:
"(4) In order to properly consider any objection, the Chief Electoral Officer –
(a)may request the advice of such persons as the Chief Electoral Officer considers necessary; and
(b)in the case of an objection to the name of a person being included on or excluded from the Roll, must give that person an opportunity to make submissions to the Chief Electoral Officer in relation to the matter."
Section 10(5) requires the Chief Electoral Officer to either accept or reject the objection within a certain time and to give written notice of his decision to the person who lodged an objection and to the person to whom the objection related. Section 10(6) provides:
"(6) A person who lodged an objection under this section and a person to whom an objection related who is aggrieved by the decision of the Chief Electoral Officer may, in accordance with the Rules of the Supreme Court, appeal to the Supreme Court within 7 days after the date on which notice was served on that person under subsection (5)."
The appellant claims to be aggrieved by the Chief Electoral Officer's decision to allow an objection to her name being included on the Roll and has lodged an appeal stating her grounds. When this matter was listed for mention on 23 July last, there was some discussion as to the nature and form of the appeal and the appropriateness of the Chief Electoral Officer being named as respondent to it.
I am of the view that the provisions of the Rules of the Supreme Court, r701 ff apply to this appeal. These provisions comprise Div 4 of Pt 27 of the Rules and deal with appeals from and cases stated by statutory tribunals other than courts. Rule 701 defines a tribunal as "any statutory tribunal or statutory office, other than a court, established or constituted by or under any Act". The Chief Electoral Officer is the person holding the statutory office of Chief Electoral Officer pursuant to the Electoral Act 1985, s4. By r704, it is provided that a number of rules applicable also to appeals from inferior courts apply to any appeal the subject of Div 4. Those rules are rr680 - 694 inclusive. Because this is an appeal from a statutory tribunal, the provisions of r705 apply and it is for that reason that the notice of appeal should be amended in the way I have indicated. Rule 707 provides:
"707 An appeal is to be instituted –
(a)by filing the original notice of appeal and one copy in a registry; and
(b)by serving a copy of the notice of appeal on the registrar, chairperson, secretary or other similar officer of the tribunal which made the determination; and
(c)unless a judge otherwise orders, if a person other than the appellant appeared before or was heard by the tribunal in the proceedings in which the determination was made, by serving a copy of the notice of appeal on that person."
The Chief Electoral Officer has been duly served and appeared by counsel but the persons objecting have not been identified. The Chief Electoral Officer has brought into Court copies of the objections, of which there appear to be three, but the names and descriptions of the objectors have been deliberately blacked out. Prima facie they have a right to be informed of the progress of this matter and to participate in it. I shall hear the other parties as to whether they should be served in accordance with r707(c) and if so, how service can be appropriately effected.
As to the nature of the appeal, counsel who appeared for the Chief Electoral Officer submitted that it was an appeal in the strict sense. I think the issue has been determined by the decision of Neasey J in In re The Medical Act 1959 [1973] Tas SR 43. He held that an appeal from the statutory tribunal, the Medical Council of Tasmania established by the Medical Act 1959, was one by way of rehearing as understood in respect of the Court of Appeal in England and was not an appeal stricto sensu, nor a hearing de novo. Neasey J was dealing with the former O76, r67 ff which, at that time, dealt with appeals not only from named statutory tribunals such as the Medical Council of Tasmania under the Medical Act 1959, but also from "any other statutory tribunal (not being a court) under any other Act". It was not until 1996 that the definition of "statutory tribunal" was amended in that order to include statutory office, but the considerations adverted to by Neasey J are the same in respect of both and in my view appeals from the latter should be treated in the same way as those from the former. In substance, the provisions of O76, r67 ff are replicated by the present r701 ff comprised in Pt 27, Div 4.
Neasey J did not find it necessary in the last-mentioned case to determine whether on an appeal of this nature fresh evidence was receivable at the judge's discretion. At 54 he said:
"If the appeal were one stricto sensu and not a rehearing, that would be so [that is, the relevant rule does not permit the judge to receive further evidence and that he is restricted to considering what the Council should have done on the materials before it]. But since it is in my opinion a rehearing it follows that evidence at least of any relevant changes which occur between the date of the Council's hearing and the date of the appeal would be receivable in the judge's discretion. It may be also that other fresh evidence is receivable in the judge's discretion, but it is not necessary in this case to express a decided view on these points."
In the case of Butler v Electrolytic Zinc Co of Australasia Ltd [1975] Tas SR 9, he was concerned with the nature of an appeal from the Master and took the view that it was neither an appeal in the strict sense nor an appeal by way of complete rehearing with all the evidence tendered afresh. He adopted the propositions advanced by Chambers J in Electrolytic Zinc Company of Australasia Ltd v Emmerton [1971] Tas SR (NC) which he set out at 10:
"(1) An appeal from the Master to a judge in chambers is not an appeal in the strict sense, nor is it an appeal by way of complete rehearing in the same sense as it is an appeal under s 113 of the Justices Act 1959.
(2) The appeal is by way of rehearing with the judge exercising his own discretion.
(3) The appeal is decided by the judge upon the materials before the Master, together with any further evidence he may see fit to receive.
(4) The judge has full power to receive further evidence and, in deciding whether or not to do so, will be guided by what he considers to be the interests of justice in the particular circumstances."
The appeals being of the same nature as set out in proposition (1), it seems to me that the remaining propositions hold true of an appeal from a statutory tribunal and I propose to proceed on that basis.
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