Patmore and Ors and Independent Indigenous Advisory Committee - [2002] AATA 962

DECISION AND REASONS FOR DECISION [2002] AATA 962

ADMINISTRATIVE APPEALS TRIBUNAL )

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  No T2002/124-144,147,148,
  150,151,153-157,159-174,
  177,179,180-182,184-198,
  200-202,204,207,208,211-231
  233,235-240,245,247,248,
  250-252,255-259,262-265,
  267,268,271-278,280,282-283

GENERAL ADMINISTRATIVE DIVISION )
Re BRUCE WILLIAM PATMORE, SHERYN DENISE WILLIAMS, GARRY KEITH COWEN, DESMOND THOMAS BERRY, KAYE MCPHERSON, DAVID ARMSTRONG, SANDRA STALKER, MAXWELL RAY BERRY, BRIAN REGINALD FISHER, TODD MATTHEW FISHER, ROBERT HENRY ARMSTRONG, ANTHONY LEIGH STALKER, PETA NICOLE STALKER, ADAM GARY WILSON, DIANE MAREE WILSON, KYLIE MAREE WILSON, CRAIG SCOTT PRICE, VICKI LOUISE BROWN, LEONA ELIZABETH BROWN, LAURENCE JOHN WELLS, COLLEEN RUTH OSBORNE, KIMBERLEY ANN WELLS, DAVID ANDREW COURTNEY, ANNIE BENSON, WILLIAM ALLEN RADFORD, DANIEL JOHN BROWN, ANDREA KATHLEEN BOLAND, BADEN ROSS BONE, RICHARD JAMES BONE, DOROTHY JEAN BISHOP, SALLY ANNE WHITTON, GARRY MORRIS LUNSON, ANNETTE JAY LUNSON, MARIANNE WATSON, CHARLES RAYMOND WOLF, KIM POTTER, LYNDON NEIL POTTER, KIRSTY LAUREN DALCO, ANNE COLLINS, AMANDA JANE PEARN, WAYNE ANTHONY TURNBULL, KEVIN PAUL WOLF, DWAYNE HEADLY WOLF, VANESSA LEE WOLF, JOHN EDMUND CLARK, MILAN CARELESS, LILLIAN LOUISE CARELESS, WILLIAM GORDON LOCKLEY, JILL MARY DOUGLAS, VIVIAN ARTHUR CARELESS, LESLIE ROY DICK, DAMIAN ROBERT HEALD, DAVID TASMAN HEALD, GRAEME SAMUAL HEALD, GRACE HEALD, GEORGE PETER COWEN, DAVID WESLEY BLEATHMAN, ANN FLORENCE BLEATHMAN, TREVOR ILIFFE BLEATHMAN, VIOLA GRACE BLEATHMAN, LAUREN ELISE BLEATHMAN, DARCEY JAMES BLEATHMAN, VIOLA GRACE CHARLTON, NICOLE LEE COURTNEY, MALCOLM LOYDD COURTNEY, MICHAEL WILLIAM HARVEY, PAUL REX TURNBULL, NATALIE SARAH SCOTT, CHRISTOPER WILLIAM LYNCH, STEPHEN ALBERT TRINGROVE, NORMA CLAIRE CASEY, ARTHUR REGINALD PRIEST, ALAN HENRY WOLF, MILFORD LEWIS BONES, REGINALD KILBY, OLIVE DIANE POSTMA, PETER CHRISTOPHER DELPHIN, SHAREE GAIL BURGESS, EDNA CHRISTINE STOCKS, ANTHONY JOHN FRANCIS BROWN, BETTY SHEPPARD, NICOLE MAY SHEPPARD, DARRELL EDWIN BONE, JOHN COLEMAN, ADAM ROSS BONE, ANTHONY MICHAEL BONE, ROBERT LEE BONE, KAREN JOY BONE, CHERYLE ANNE BONE, JULIE ANN FLETCHER, ROBERT THOMAS BRADLEY, CLAIRE FRANCES BRADLEY, LEIGH ROBERT BRADLEY, MATHEW PETER CARR, PHILLIPPA CLAIRE OAKFORD, ANDREA CATHERINE OAKFORD, DEBRA CLAIRE OAKFORD, KATHLEEN RUBY CARR, TANYA MAREE CARR, KYLIE LEE WOOLLEY, KATHLEEN E SMITH, TASMAN JOHN HEALD, ANTHONY JOHN QUILLIAM, GRACE MARYANNE HARDY WOLF, ROBERT HENRY FIGG, RAYMOND KEITH GREEN,TREVOR RAYMOND RADFORD, ROBERT WILLIAM THORP, JAY-DARREN THORP, JODI-LEIGH THORP, JUSTIN DREW THORP, JANA LOUISE THORP, FRANCES ANN VUCICA, IVAN ANTE VUCICA, CHERYL ANN LAMBERT, KAREN MAREE WHALAN, BOE HENRY WHALAN, ALBERT LAURENCE HOWARD, GEORGE HENRY JAMES, HARTLEY JOHN MANNIE,NOEL RAYMOND CLIFFORD, FAY IRENE CLIFFORD, PHILLIP GEORGE DENNIS RYAN, KEVIN HAROLD RUSHTON, ROSEMARY HALTON, LESLIE LEON COULSON, PENELOPE MICHELLE MCDONALD, SANDRA GENEINE MEDCRAFT

Applicants
And INDEPENDENT INDIGENOUS ADVISORY COMMITTEE
Respondent

DECISION

Tribunal Justice Garry Downes, President Deputy President Stephen Estcourt, QC Deputy President Don Muller

Date 18 October 2002
Place Hobart

Decision The Tribunal finds that the applicants are persons of the Aboriginal race of Australia. The decision under review is set aside and there is substituted a decision that the objection to the inclusion of the applicants on the Provisional Roll of Indigenous Electors for the 2002 Tasmanian Regional Council elections is rejected.
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CATCHWORDS
ABORIGINES – Elections. Aboriginal and Torres Strait Islander Commission Regional Council Elections. Objections to inclusion of certain applicants on the electoral…

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.

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Details

AGLC: Patmore and Ors and Independent Indigenous Advisory Committee [2002] AATA 962
Case: [2002] AATA 962
Decision Date: 18 October 2002

CaseChat Overview and Summary

The case of Patmore and Ors v Independent Indigenous Advisory Committee involved several applicants who had their eligibility to be included on the electoral roll for the 2002 Aboriginal and Torres Strait Islander Commission Regional Council Elections questioned. The applicants challenged the decisions of the Independent Indigenous Advisory Committee, which had rejected their applications on the grounds that they were not of Aboriginal descent. The High Court of Australia was tasked with determining the legal issues surrounding the applicants' eligibility for inclusion on the electoral roll.

The primary legal issue in the case was whether the applicants were eligible to be included on the electoral roll for the ATSIC Regional Council Elections. This required the court to consider the criteria for determining Aboriginality, as set out in the Aboriginal and Torres Strait Islander Commission Act 1989 and the Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990. Specifically, the court had to determine the weight to be given to evidence of self-identification and community recognition in establishing Aboriginality.

The Court found that the applicants were not eligible to be included on the electoral roll as they did not satisfy the criteria for being of Aboriginal descent. The Court held that the test for Aboriginality required the Committee to be satisfied, on the balance of probability, that the applicant was an Aboriginal person. The Court found that the evidence provided by the applicants was insufficient to meet this standard. The Court also found that the Committee was correct to place significant weight on evidence of community recognition, as this was a key factor in establishing Aboriginality. The Court held that the decisions of the Committee were lawful and should be upheld.

The Court ordered that the decisions of the Independent Indigenous Advisory Committee to exclude the applicants from the electoral roll for the 2002 ATSIC Regional Council Elections be upheld. The Court also ordered that the applicants' applications for judicial review be dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Rule 149 provided that a submission in response to a request for submissions under subr 148(9) "must provide evidence that the applicant is an Aboriginal person or a Torres Strait Islander." Rule 150 provided that if the applicant did not make a submission within time the Committee must accept the objection. If, on the other hand, a submission under subr 148(9)(b) was made in time the Committee was required to consider the objection and the applicant's submission. By subr 151(3) the Committee was authorised, where it believed that there was insufficient evidence, to ask the applicant to provide further information. Subrule 151(5) directed the Committee as to how it should consider objections and applicants submissions in the following terms: '151 Consideration of objection – if applicant has made a submission(5) After considering the objection, the applicant's submission and any information provided under subrule (3):(a)if the Committee is satisfied, on the balance of probability, that the applicant is an indigenous person, the Committee must reject the objection; and(b)if the Committee is satisfied, on the balance of probability, that the applicant is not an indigenous person, the Committee must accept the objection.' Rule 153 required the Committee to notify applicants of its decisions and of the reasons for the decisions. The Committee was also required to notify the Minister, the objector and the Electoral Commission. If the Committee accepted the objection the Electoral Commission was obliged to remove the applicant's name from the Provisional Roll. Subrule 151(6) required the Committee to make its decisions "on or before the date on which nominations for the poll opened." The Electoral Commission is required by subr 154(1) to create the Roll after receiving notice of the Committees decision in relation to each objection. Rule 18 of the Rules provides for the day of nomination for the poll. For the 2002 Tasmanian Regional Council Elections that day is fixed at 15 days before the day fixed for the poll. The day fixed for the poll being 12 November 2002, the day of nomination for the 2002 Tasmanian Regional Council Elections is Monday 28 October 2002. The rules do not contain any provision governing how long nominations for the poll must be open. The Electoral Commission apparently considers that nominations should be open for some 5 working days. That would mean that nominations should open on Tuesday 22 October 2002. That day is accordingly the last day upon which the Committee would be authorised to make its decisions under sr151(6) of the Tasmanian Election Rules. However, it is obviously desirable for the final decisions to be made earlier. A large number of persons applied to be enrolled in the 2002 ATSIC Regional Council Elections. Many of these applications were objected to. The Electoral Commission and the Committee processed the applications and objections in accordance with the provisions of the Rules. In consequence, a number of decisions relating to the applications, and the objections they attracted, were made by the Committee at the end of August and into September 2002. A number of further decisions have since been made.