Namatjira v Raabe - [1959] HCA 13

NAMATJIRA

DEFENDANT, RAABE

RESPONDENT. COMPLAINANT,

ON APPLICATION FOR LEAVE TO APPEAL FROM THE

SUPREME COURT OF THE NORTHERN TERRITORY. Aboriginals-Ordinance-Construction-Provisio that Administrator of Territory

may declare a person to be a ward if certain conditions present-Declaration as ward-Person declared ward given no opportunity to be heard prior to declaration MELBOURNE,

-Right of appeal against declaration to judicial tribunal-Whether necessary Mar. 12, 13.

for each case to be dealt with individually-Whether necessary for notice to be given to proposed ward prior to declaration-Licensing Ordinance 1939-1957 (N.T.), S. 141 - -Welfare Ordinance 1953-1957 (N.T.), 8. 14.

Section 14 of the Welfare Ordinance 1953-1957 (N.T.) provides that subject to the provisions of the section the Administrator may, by notice in the Gazette, declare a person to be a ward if that person by reason of (a) his manner of living; (b) his inability, without assistance, adequately to manage his own affairs (c) his standard of social habit and behaviour; and (d) his personal associations, stands in need of such special care or assistance as is provided by the ordinance. Sub-section (2) goes on to exclude almost everyone but aboriginals from the operation of the ordinance. By S. 30 an appeal is given to a judicial tribunal from a declaration.

Held, that on its proper construction S. 14 does not require that each case of a proposed declaration should be dealt with individually or after notice to the proposed ward.

Application for leave to appeal from the Supreme Court of the Northern Territory (Kriewaldt J.), refused.

APPLICATION for leave to appeal from the Supreme Court of the Northern Territory.

Albert Namatjira was tried before the court of summary juris- diction at Alice Springs in the Northern Territory on a complaint laid by Gordon Edgar Raabe charging the defendant for that on 26th August 1958 near Hermansberg he did supply liquor to Henoch

100 CLR 665

Raberaba, a ward within the meaning of the Welfare Ordinance H. 1953-1957, contrary to S. 141 of the Licensing Ordinance 1939-1957. On 7th October 1958 the defendant was found guilty and sentenced to imprisonment with hard labour for six months.

The defendant appealed from his conviction and sentence to the Supreme Court of the Northern Territory. On 23rd December 1958 Kriewaldt J. in a written judgment ordered that the appeal against conviction be dismissed but that the appeal against sentence be allowed to the extent that the period be reduced from six months to three months. The defendant now applied to the High Court for leave to appeal against this decision.

M. J. Ashkanasy Q.C. and N. M. Stephen, for the applicant. Dr. E. G. Coppel Q.C. and R. L. Gilbert, for the respondent. The following oral judgment of the Court was delivered by

DIXON C.J. :-

This is an application for leave to appeal from an order of the Supreme Court of the Northern Territory. The order was made on an appeal from conviction and sentence by a magistrate. The order of the…

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 Namatjira v Raabe

Details

AGLC: Namatjira v Raabe [1959] HCA 13
Case: [1959] HCA 13
Decision Date: 13 March 1959

CaseChat Overview and Summary

This case concerned an application for leave to appeal to the High Court of Australia from a decision of the Supreme Court of the Northern Territory. The applicant, Albert Namatjira, had been convicted of supplying liquor to Henoch Raberaba, a person declared to be a "ward" under the Welfare Ordinance 1953-1957 (N.T.). The Supreme Court had dismissed Namatjira's appeal against conviction but reduced his sentence. The central dispute revolved around the validity of Raberaba's declaration as a ward.

The legal issues before the High Court were whether the Welfare Ordinance required individual notice to be given to a person before they could be declared a ward, and whether each case needed to be individually assessed and dealt with before such a declaration could be made. Namatjira contended that the declaration of Raberaba as a ward was void due to the absence of prior notice and individual consideration, which he argued were implied requirements of the Ordinance.

The High Court held that, on its proper construction, section 14 of the Welfare Ordinance did not necessitate individual notice or a separate hearing for each proposed declaration of wardship. The Court reasoned that the provision of an immediate right of appeal to a judicial tribunal under section 30 of the Ordinance displaced the need for a pre-declaration hearing, as it provided a means for individuals to contest their status. Furthermore, the Court considered the legislative background, noting that the Ordinance replaced prior legislation dealing with Aboriginals and that the power to declare wards was vested in the Administrator, suggesting a function that would likely operate on a broader basis rather than through individual inquiries. The Court concluded that the Ordinance authorised "block" declarations of wardship, as had occurred in this instance.

Consequently, the High Court found that the declaration of Henoch Raberaba as a ward was valid and that Namatjira's contention regarding the invalidity of the declaration failed. As the other grounds for appeal, relating to the conviction itself and the sentence, were also dismissed, the application for leave to appeal was refused.

Orders