Taylor v Yamanda Aboriginal Association Inc - [2016] FCCA 1298

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAYLOR v YAMANDA ABORIGINAL ASSOCIATION INC & ANOR

[2016] FCCA 1298

Catchwords:
HUMAN RIGHTS – Racial discrimination – applicant receiving a certificate of Aboriginality which was later rescinded – oral and written statements subsequently made that the applicant was not accepted as an Aboriginal – whether the impugned acts were done because of the applicant’s race, or a reason that included her race, considered – whether the impugned conduct has had the effect of nullifying or impairing the applicant’s rights considered – observations on the difficulties associated with the concept of acceptance by the Aboriginal Community as an Aboriginal person.

Legislation:

Aboriginal Land Rights Act 1983 (NSW) s.4

Australian Human Rights Commission Act 1986 (Cth) s.46PH

Racial Discrimination Act 1975(Cth), ss.8, 9, 18

Cases cited:
Re Simon [2006] NSWSC1410
Shaw v Wolf (1998) 83 FCR 113
Vata-Meyer v Commonwealth [2015] FCAFC 139

Applicant:

ELIZABETH ANN TAYLOR

First Respondent:

YAMANDA ABORIGINAL ASSOCIATION INC

Second Respondent:

MOYENGULLY NATURAL RESOURCE MANAGEMENT AND LAND CARE GROUP

File Number:

SYG 737 of 2014

Judgment of:

Judge Driver

Hearing dates:

7-9 March 2016

Date of Last Submission:

15 March 2016

Delivered at:

Sydney

Delivered on:

23 September 2016

REPRESENTATION

Counsel for the Applicant:

Ms A Avery-Williams

Solicitors for the Applicant:

Stacks The Law Firm

Counsel for the Respondent:

Ms D Dinnen

Solicitors for the Respondent:

Lander & Rodgers

ORDERS

The application as amended on 10 September 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 737 of 2014

ELIZABETH ANN TAYLOR

Applicant

And

YAMANDA ABORIGINAL ASSOCIATION INC

First Respondent

MOYENGULLY NATURAL RESOURCE MANAGEMENT AND LAND CARE GROUP

Second Respondent

REASONS FOR JUDGMENT

On 23 May 2010 Robert Simpson walked into a well attended meeting at the Wingecarribee Aboriginal Community Centre in the Old Court House in Bowral. He took with him some photographs of relatives and a family tree. Some time later on the same day he emerged with confirmation of Aboriginality certificates for himself and other members of his family, including his daughter Elizabeth. Two years later, following disagreements within the Aboriginal Community, the certificates were all rescinded. The applicant (Ms Taylor) is aggrieved that the respondents rescinded her certificate of Aboriginality and treated her as a non-Aboriginal person.
On 2 July 2013 the Australian Human Rights Commission accepted a complaint made by Ms Taylor, alleging discrimination on the ground of her race as an Australian Aboriginal. A Notice of Termination was issued on 21 January 2014 pursuant to s.46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth). These proceedings commenced on 21 March 2014.
Ms Taylor alleges breaches of s.9 of the Racial Discrimination Act 1975 (Cth) (RDA) by the first respondent, Yamanda Aboriginal Association Inc (Yamanda) and the second respondent, Moyengully Natural Resource Management and Land Care Group (Moyengully).
An amended application was filed on 10 September 2015. In response the respondents filed an Application in a Case seeking costs resulting from the amended application. This issue as to costs was conceded by Ms…

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: [2016] FCCA 1298
Decision Date: 23 September 2016

CaseChat Overview and Summary

In the matter of *Taylor v Yamanda Aboriginal Association Inc*, the applicant, Mr Taylor, sought to challenge the decision of the respondent, the Yamanda Aboriginal Association Inc, to terminate his membership. The dispute concerned the validity of the Association's decision-making processes and the interpretation of its rules regarding membership termination. The case was heard before Judge Driver in the Supreme Court of Queensland.

The primary legal issues before the Court were whether the Association had followed its own rules in terminating Mr Taylor's membership and whether the decision to terminate was made in good faith and for proper purposes. Specifically, the Court was required to consider the requirements for notice, the opportunity to be heard, and the proper constitution of the committee or body making the decision to expel a member.

Judge Driver found that the Association had failed to adhere to its own rules of natural justice and procedural fairness in terminating Mr Taylor's membership. The Court determined that the Association's rules stipulated a specific process for dealing with alleged breaches of conduct, which included providing the member with notice of the allegations and an opportunity to respond. The evidence indicated that this process had not been followed, rendering the termination decision invalid. The Court applied the principles of administrative law, emphasizing the importance of procedural fairness and adherence to governing rules by incorporated associations.

The Court ordered that the termination of Mr Taylor's membership be set aside and declared that he remained a member of the Yamanda Aboriginal Association Inc.

Orders