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Shaw v Wolf

Shaw v Wolf

Case [1998] FCA 389 20 April 1998

Constitutional Validity

Separation of Powers

Statutory Interpretation

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FEDERAL COURT OF AUSTRALIA

ABORIGINES - Aboriginal and Torres Strait Islander Commission Regional Council Elections - candidates required to be an “Aboriginal person” - whether candidates unqualified - meaning of “Aboriginal person” - whether onus on a petitioner to establish candidates are not Aboriginal persons - consideration of role of Aboriginal descent, self identification and communal recognition as an Aboriginal person - appropriate relief where certain candidates not qualified - meaning of “illegal practice” in conduct of election - circumstances in which Court should declare a candidate not to be duly elected.

EVIDENCE - whether the principle of Briginshaw v Briginshaw applicable to a determination that a person is not an Aboriginal person - whether such a determination has “important and grave” consequences.

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 101, 102, Sch 4 cl 12 (3)
Regional Council Election Rules

Gibbs v Capewell (1995) 128 ALR 577 explained
Ofu-Koloiv The Queen (1956) 96 CLR 172 cited
Blundell v Vardon (1907) 4 CLR 1463 followed
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 considered and applied
Briginshaw v Briginshaw (1938) 60 CLR 336 applied
In Re Jane (1988) 12 Fam LR 662 considered
Re Wood (1988) 167 CLR 145 cited
Re Wood (No 2) (1988) 62 ALJR 377 cited
Pettit v Atkinson (1994) 50 FCR 174 considered
Wasaga v Tahal (1991) 33 FCR 438 considered
Australian Electoral Commission v Towney (1994) 51 FCR 250 considered
Free v Kelly (1996) 185 CLR 296 cited

The Aboriginal Tasmanians, Lyndall Ryan (2nd ed, 1996, Allen & Unwin)

EDWINA SHAW and JOANNE JAMES -v- CHARLES WOLF and OTHERS

TG 33 of 1996

JUDGE:  MERKEL J
PLACE:  MELBOURNE
DATE:  20 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA )

TASMANIA DISTRICT REGISTRY ) TG 33 of 1996

GENERAL DIVISION )

IN THE MATTER OF A DISPUTED ELECTION UNDER THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989

BETWEEN:
EDWINA SHAW and JOANNE JAMES
Petitioners

AND:
CHARLES WOLF, BRIAN FISHER, JOHN CLARK, DEBBIE OAKFORD, MICK COURTO, KERRY ARGENT, BEVERLEY WOOD, ROSALIE MEDCRAFT, LANCE LESAGE, JOHN COLEMAN, BADEN BONE, AUSTRALIAN ELECTORAL COMMISSION; FAYE TATNELL, ROCKY SAINTY, ROY MAYNARD, GARRY MAYNARD, RODNEY DILLON, LEONIE DICKSON, JO JAMES and PHILLIP BEETON.
Respondents

JUDGE: MERKEL J

PLACE: MELBOURNE

DATED: 20 APRIL 1998

THE COURT DIRECTS THAT:

The Australian Electoral Commission, after consultation with the parties or their legal advisers, bring in proposed Minutes of Orders to give effect to the Court’s reasons for judgment within twenty-one days.

The parties and the Commonwealth have leave to file, within twenty-one days, any written submissions that they wish to make as to the costs orders that they contend are appropriate.

If any of the parties wish to have a further hearing on the question of costs that issue can be addressed in the submissions.

Liberty to apply is reserved.

IN THE FEDERAL COURT OF AUSTRALIA )

TASMANIA DISTRICT REGISTRY ) TG 33 of 1996

GENERAL DIVISION )

IN THE MATTER OF A…

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 Shaw v Wolf

Details

AGLC: Shaw v Wolf [1998] FCA 389
Case: [1998] FCA 389
Decision Date: 20 April 1998.

CaseChat Overview and Summary

The case of Shaw v Wolf dealt with the issue of determining the eligibility of candidates for election to a Regional Council under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). The court had to decide whether certain respondents were "Aboriginal persons" as defined by the Act. The court found that two of the eleven respondents were not Aboriginal persons and thus not eligible to stand for election. The court also considered the appropriate relief to be granted, taking into account the impact of the unqualified candidates on the election. The court concluded that it was not just to interfere with the election of the other candidates and ordered a further count or re-counting of the votes to determine the candidate entitled to be elected to the vacant position. The court also considered the issue of costs and directed that the parties and the Commonwealth file any written submissions they wish to make as to the costs orders that they contend are appropriate.

Orders