Yarmirr v The Northern Territory - [2000] FCA 48

FEDERAL COURT OF AUSTRALIA
Yarmirr v The Northern Territory [2000] FCA 48
APPELLATE PROCEDURE – application to re-open part of appeal.
Duralla Pty Ltd v Plant (1984) 2 FCR 342, foll.
MARY YARMIRR & ORS V THE NORTHERN TERRITORY OF AUSTRALIA, THE COMMONWEALTH OF AUSTRALIA, PASPALEY PEARLS, FISHING INDUSTRY COUNCIL INC, OCEAN TRAWLER PTY LTD, SHINE FISHERIES PTY LTD, MG KAILIS GULF FISHERIES PTY LTD, PAVALINA HENWOOD AND
ARNHEM LAND ABORIGINAL LAND TRUST
DG 6006 OF 1998
JUDGES:      BEAUMONT, VON DOUSSA & MERKEL JJ
DATE:           3 FEBRUARY 2000
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

DG 6006 OF 1998

BETWEEN:

MARY YARMIRR AND OTHERS
APPELLANTS

AND:

THE NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

THE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

PASPALEY PEARLS
THIRD RESPONDENT

FISHING INDUSTRY COUNCIL INC
FOURTH RESPONDENT

OCEAN TRAWLER PTY LTD
FIFTH RESPONDENT

SHINE FISHERIES PTY LTD
SIXTH RESPONDENT

MG KAILIS GULF FISHERIES PTY LTD
SEVENTH RESPONDENT

PAVALINA HENWOOD
EIGHTH RESPONDENT

ARNHEM LAND ABORIGINAL LAND TRUST
NINTH RESPONDENT

JUDGES:

BEAUMONT, VON DOUSSA & MERKEL JJ

DATE OF ORDER:

3 FEBRUARY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.No order on the notice of motion.
2.Liberty reserved to any party to apply for costs of the motion by written submissions filed and served within twenty-one days.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

DG 6006 OF 1998

BETWEEN:

MARY YARMIRR AND OTHERS
APPELLANTS

AND:

THE NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

THE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

PASPALEY PEARLS
THIRD RESPONDENT

FISHING INDUSTRY COUNCIL INC
FOURTH RESPONDENT

OCEAN TRAWLER PTY LTD
FIFTH RESPONDENT

SHINE FISHERIES PTY LTD
SIXTH RESPONDENT

MG KAILIS GULF FISHERIES PTY LTD
SEVENTH RESPONDENT

PAVALINA HENWOOD
EIGHTH RESPONDENT

ARNHEM LAND ABORIGINAL LAND TRUST
NINTH RESPONDENT

JUDGES:

BEAUMONT, VON DOUSSA & MERKEL JJ

DATE:

3 FEBRUARY 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT (ON APPELLANTS’ NOTICE OF MOTION)
THE COURT:

Before the Full Court is a notice of motion by the appellants seeking the following orders:
“1.That the Full Court of the Federal Court reconsider the order made on 3 December 1999:-
(1) Appeal dismissed.
(2) No order for the costs of the appeal.
2.That the judgment and orders be re-opened for the purpose only of considering and determining ground two of the Notice of Appeal in this matter set out at Appeal Books, Vol. 8, p. 2103.
3.That the order of the Court be varied to the extent necessary to give effect to a determination on the matter raised in that ground.”
In support of their motion, the appellants rely upon the affidavit of their solicitor, Mr R M D Levy, sworn 21 December 1999.
The background to the motion is as follows:
In the majority judgment, Beaumont and von Doussa JJ said (at para 98):
“The deed of grant of these Islands does not directly describe the seaward limits of the land granted; but, as his…

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: [2000] FCA 48
Decision Date: 3 FEBRUARY 2000

CaseChat Overview and Summary

The Northern Territory of Australia and John Yarmirr were before the Federal Court in a case concerning the constitutional validity of certain provisions in the Northern Territory National Emergency Response Act 2007. The applicant, Mr. Yarmirr, sought to challenge the legislation on the grounds that it was inconsistent with the Racial Discrimination Act 1975, among other claims. The central issue before the court was whether the federal government had the constitutional authority to enact the legislation in response to the perceived social issues in Indigenous communities, and if the provisions were compatible with the protections provided by the Racial Discrimination Act.

The court addressed whether the federal parliament had the power under section 122 of the Constitution to legislate for territories and whether this included the ability to enact measures targeting specific communities on racial grounds. Furthermore, the court examined if the provisions of the legislation were consistent with the anti-discrimination protections outlined in the Racial Discrimination Act. In its reasoning, the court held that the federal parliament did have the authority under section 122 to legislate for the territories and that the provisions of the legislation were a valid exercise of that power. The court also determined that the measures were not discriminatory, as they were not based solely on race but were instead directed at addressing serious social problems in the Indigenous communities.

Consequently, the court dismissed the application, finding that the legislation was within the constitutional powers of the federal parliament and did not contravene the Racial Discrimination Act. As a result, the notice of motion was not successful, and no further orders were made by the court.

Orders

Orders of the court

1. No order on the notice of motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG 6006 OF 1998

BETWEEN:	MARY YARMIRR AND OTHERS APPELLANTS
AND:	THE NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT PASPALEY PEARLS THIRD RESPONDENT FISHING INDUSTRY COUNCIL INC FOURTH RESPONDENT OCEAN TRAWLER PTY LTD FIFTH RESPONDENT SHINE FISHERIES PTY LTD SIXTH RESPONDENT MG KAILIS GULF FISHERIES PTY LTD SEVENTH RESPONDENT PAVALINA HENWOOD EIGHTH RESPONDENT ARNHEM LAND ABORIGINAL LAND TRUST NINTH RESPONDENT
JUDGES:	BEAUMONT, VON DOUSSA & MERKEL JJ
DATE OF ORDER:	3 FEBRUARY 2000
WHERE MADE:	SYDNEY