Gibbs, D v Capewell, L & Ors [1995] FCA 25

Gibbs, D v Capewell, L & Ors [1995] FCA 25

Under the Aboriginal and Torres Strait Islander Commission Act 1989, a person must have some degree of descent from the Aboriginal inhabitants of Australia before European settlement to qualify as an 'Aboriginal person'; but, particularly where descent is slight, genuine self-identification as Aboriginal and/or acceptance by the Aboriginal community may also be required to meet the statutory definition. Merely having a distant Aboriginal ancestor, without more, is not enough, nor is mere self-identification or community acceptance in the absence of descent.

Parties
Petitioner: Desmond Gibbs; First Respondent: Lyle Capewell; Second Respondent: Australian Electoral Commission; Respondent by Election: Minister for Aboriginal and Islander Affairs
Jurisdiction
Australia
Judgment Date
03 February 1995
Procedural Posture
Election Petition / Preliminary Question (construction of 'aboriginal Person')
Outcome
No formal order made at this stage; reasons published for preliminary issue; further hearing adjourned.
Legal Topics
Definition of 'aboriginal Person', Statutory Construction, Indigenous Eligibility for Election, Statutory Elections
Administrative Law Election Law Statutory Interpretation Definition of 'aboriginal Person' Statutory Construction Indigenous Eligibility for Election Statutory Elections

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Desmond Gibbs

Petitioner

Lyle Capewell

First Respondent

Australian Electoral Commission

Second Respondent

Minister for Aboriginal and Islander Affairs

Respondent by Election

Procedural Posture

Election Petition / Preliminary Question (construction of 'aboriginal Person')

Legal Issues

  1. 1 What is the meaning of 'Aboriginal person' under the Aboriginal and Torres Strait Islander Commission Act 1989 for the purposes of eligibility to stand or vote in elections?

Ratio Decidendi

Under the Aboriginal and Torres Strait Islander Commission Act 1989, a person must have some degree of descent from the Aboriginal inhabitants of Australia before European settlement to qualify as an 'Aboriginal person'; but, particularly where descent is slight, genuine self-identification as Aboriginal and/or acceptance by the Aboriginal community may also be required to meet the statutory definition. Merely having a distant Aboriginal ancestor, without more, is not enough, nor is mere self-identification or community acceptance in the absence of descent.

Court Disposition

No formal order made at this stage; reasons published for preliminary issue; further hearing adjourned.

Orders

  • Reasons for judgment delivered; question of meaning of 'Aboriginal person' determined as preliminary issue; no formal order pronounced; further hearing adjourned for directions.