Nettheim, Garth --- "MD (a child) v McKinlay (Appeal - attempt to break and enter - admissibility of confessional evidence -- child - Anunga Rules - failure to notify solicitor of police interview)" [1985] AboriginalLawB 63; (1985) 1(16) Aboriginal Law Bulletin 9

• Collector Of Customs, Tasmania V Flinders Island Community Association
• Administrative Law-Customs Duty-Diesel Fuel Rebate-Whether Fuel Used ‘At’ Residential Premises-Whether Tribunal Entitled To Rely On Its Understanding Of Traditional Aboriginal Concepts Of Community Ownership And Interest.
• Comment:

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Collector of Customs, Tasmania v Flinders Island Community Association

Administrative law - Customs Duty - diesel fuel rebate - whether fuel used ‘at’ residential premises - whether tribunal entitled to rely on its understanding of traditional Aboriginal concepts of community ownership and interest.

Collector of Customs, Tasmania v Flinders Island Community Association

Federal Court of Australia (Sheppard, Wilcox & Everett JJ) at Sydney

1 July 1985

Casenote by Garth Nettheim

The Full Federal Court dismissed an appeal against the decision of the Administrative Appeals Tribunal (noted in [1985] AboriginalLB 22; 1(13)pg9). The AAT had held that the association was entitled, under Customs Act, 1901 (C'th) S.164. to a rebate of duty paid on the purchase of diesel fuel used 'at residential premises' for the domestic requirements of residents of the premises. The Collector of Customs argued that the AAT decision was erroneous in law and that a rebate is not available where diesel fuel is used in a generator located separately from the residential premises in question (eight houses on Flinders Island).

The AAT had stressed that they were dealing with an Aboriginal community and taking into account Aboriginal concepts of community which might not be applicable to a non-Aboriginal community. The Federal Courtt held that this approach by the AAT was legally erroneous for the reason that there was ‘no evidence before the Tribunal as to the nature of those concepts or as to the extent that they found adherence amongst the persons residing upon the subject land ... with absence of evidence to support such a course, we see no reason to approach the problem in any different mannerthan would have applied to any other Australian community in a similar situation.’

However on general principles of interpretation applied to the phrase 'at residential premises', particularly in light of the non-profit, communal nature of the arrangements, operating among members of the association, the AAT's decision in allowing the rebate was held to be correct even though one aspect of its reasoning was not.

Mr K. Proctor, instructed by Australian Government Solicitor, appeared for the appellant.

Mr P. Slicer, instructed by Mr H. J. Derkley, appeared for the respondent.

Comment:

H. J. Derkley

The Full Court's decision lacks the strong 'Aboriginal' element of the AAT's decision. The Court took a very much less expansive view of what judicial notice could be taken on concepts of 'Aboriginal ownership'. Nevertheless, the facts on which it found for the Association amply accommodate the situations of remote Aboriginal communities on diesel fuel. in that sense, it is a victory for such Aboriginal communities right around Australia.

Editor's Note:

Now that a rebate exists for remote communities which use diesel fuel, another consolation can be taken into consideration. Obviously the incentive to Aboriginal communities to take up diesel fuel would add to the combatance of petrol-sniffing amongst young Aboriginal people, especially in remote areas.