Robinson v Australian Electoral Commission - [1994] FCA 1118

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IN THE FEDERAL cou RT OF AUSTRALIA 1

QUEENSLAND DISTRICT REGISTRY 1 No. QG 192 of 1993 , ,

GENERAL DIVISION ) +

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BETWEEN: JOHN RICHARD ROBINSON
Applicant

AND: AUSTRALIAN ELECTORAL COMMISSION

First Respondent
AND: STEPHEN BROWN
Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: Spender J
DATE OF ORDER: 15 August 1994
WHERE MADE: Brisbane
THE COURT ORDERS that:
the application for an order of review' under the Administrative Decisions [Judicial Review) Act 1977 is dismissed, with costs, to be taxed if not agreed.

NOTE : Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY

1 No. QG 192 of 1993
GENERAL DIVISION 1
BETWEEN: JOHN RICHARD ROBINSON
Applicant

AND: AUSTRALIAN ELECTORAL COMMISSION

First Respondent
AND: STEPHEN BROWN
Second Respondent

CORAM : Spender J
PLACE : Brisbane
DATE
-* 15 August 1994

REASONS FOR JUDGMENT

On Tuesday, 2 November 1993, the applicant, John Richard Robinson, who is not an "Aboriginal personw or "Torres
S t r a i t Islanderw as those terms are defined by the Aboriainal
and Torres Strait Islander Commission Act (1989) ('the ATSIC Act') sought to nominate as a candidate in the election for the Aboriginal and Torres Strait Islander Commission Regional Council ele~tion for the Townsville region. Section 101 of the ATSIC Act provides:

A person i s entitled t o vote a t an election for the members of a Regional Council i f and only

- i f :
(a) the person is an Aboriginal person or a

Torres S t r a i t Is1 ander; and

(b) either:

(i) the person's name i s on the
Commonwealth Electoral Roll and the person's place o f l iv ing as shown on that Roll i s within the region for which the Regional Council i s established; or
(ii) the person i s entitled t o vote a t the

election pursuant t o rules made under
subsection 113(3). " [my emphasis]

The second respondent, Stephen Brown, the regional returning officer for the Townsville region, rejected his nomination on the grounds that the nomination did not comply with rr. 9(l)(b) and 13(a)(ii)(A) of the Reaional CounciL Election Rules ('the Rulesf), which relevantly provide:

" 9 . ( 1 ) A nomination must:
...

(b)

be signed by not less than 4 electors, other than the candidate, who are enrolled i n respect o f the ward for which the

candidate i s nominated. 11

. . .

and
" 13. A nomination i s not valid unless:

( a ) the person nominated:
...

(ii ) declares t

(A ) t h a t he or she i s qualified t o

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

Case: [1994] FCA 1118
Decision Date: 15 Aug 1994

CaseChat Overview and Summary

John Richard Robinson sought to nominate as a candidate for election to the Townsville Regional Council of the Aboriginal and Torres Strait Islander Commission, established under the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act). His nomination was rejected because he did not satisfy the eligibility requirements under the ATSIC Act, specifically the requirement to be an Aboriginal or Torres Strait Islander. Robinson, who is not an Aboriginal or Torres Strait Islander, argued that the Racial Discrimination Act 1975 (the RD Act) should allow him to enjoy the right to vote and stand for election to the same extent as Aboriginal or Torres Strait Islander persons.

The legal issues before the court were whether the ATSIC Act, which discriminates on the basis of race or ethnic origin, could be subject to the provisions of the RD Act, and whether the decision to reject Robinson's nomination constituted racial discrimination under the RD Act. The court had to determine whether the ATSIC Act, as a discriminatory law, could be read in a way that would allow it to be subject to the RD Act, and if not, whether the ATSIC Act could be considered a special measure under the International Convention on the Elimination of all Forms of Racial Discrimination, exempt from the RD Act.

The court held that the ATSIC Act was a discriminatory law intended to further the economic, social, and cultural development of Aboriginal and Torres Strait Islander peoples. The objects of the Act, as set out in section 3, clearly indicated that it was designed to achieve specific outcomes for these groups. The court found that the ATSIC Act was not subject to the RD Act because Parliament had expressly authorised the discriminatory provisions of the Act. Furthermore, the court determined that the ATSIC Act constituted a special measure under the International Convention, exempt from the provisions of the RD Act. Therefore, the court dismissed Robinson's application for an order of review and costs were awarded to the respondents.

The court's decision was based on the principle that when Parliament enacts a law with discriminatory provisions, it intends for those provisions to operate as authorised. The court also found that the ATSIC Act was a special measure designed to achieve specific objectives for Aboriginal and Torres Strait Islander peoples, which justified the discriminatory nature of the Act under international law. As a result, the Racial Discrimination Act did not apply to the ATSIC Act, and Robinson's nomination was properly rejected.

Orders