Shaw v Wolf [1998] FCA 389

Shaw v Wolf [1998] FCA 389

Petitioners bear the onus of establishing, on the balance of probabilities and with due regard to the seriousness of the issue (Briginshaw standard), that a respondent is not an Aboriginal person within the statutory meaning—requiring failure of descent, self-identification, and community recognition; only in respect of two respondents (Debbie Oakford, Lance Lesage) was this onus discharged, and so only their participation constituted an illegal practice under the Act significant enough to warrant relief, specifically a declaration that Ms Oakford was not duly elected and a recount ordered.

Jurisdiction
Australia
Judgment Date
20 April 1998
Procedural Posture
Election Petition / Judgment
Outcome
Partial success for petitioners as against two respondents; otherwise, petitioners' claims dismissed as against other respondents.
Legal Topics
["statutory Interpretation of 'aboriginal Person'" 'onus and Standard of Proof in Election Disputes' 'relief in Cases of Candidate Ineligibility' 'definition and Elements of Aboriginal Descent, Self Identification, Communal Recognition']
['administrative Law' 'indigenous Law' 'electoral Law'] ["statutory Interpretation of 'aboriginal Person'" 'onus and Standard of Proof in Election Disputes' 'relief in Cases of Candidate Ineligibility' 'definition and Elements of Aboriginal Descent, Self Identification, Communal Recognition']

Case Brief

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Procedural Posture

Election Petition / Judgment

Legal Issues

  1. 1 ["Meaning of 'Aboriginal person' under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)" 'Onus and standard of proof required to establish whether a candidate is an Aboriginal person' 'Appropriate relief when unqualified persons have stood or been elected in federal Aboriginal council elections' "Definition of 'illegal practice' in the conduct of such elections"]

Ratio Decidendi

Petitioners bear the onus of establishing, on the balance of probabilities and with due regard to the seriousness of the issue (Briginshaw standard), that a respondent is not an Aboriginal person within the statutory meaning—requiring failure of descent, self-identification, and community recognition; only in respect of two respondents (Debbie Oakford, Lance Lesage) was this onus discharged, and so only their participation constituted an illegal practice under the Act significant enough to warrant relief, specifically a declaration that Ms Oakford was not duly elected and a recount ordered.

Court Disposition

Partial success for petitioners as against two respondents; otherwise, petitioners' claims dismissed as against other respondents.

Orders

  • ['Court declares that Debbie Oakford was not duly elected as a Regional Councillor of the Tasmanian Regional Council of the Aboriginal and Torres Strait Islander Commission for the Hobart Ward and that there remains one place to be filled from the Hobart Ward.' 'Court orders that the Regional Returning Officer...