The Respondent was a candidate in the 2019 Federal Election, and failed to make disclosures of gifts as required by section 304 of the Commonwealth Electoral Act 1918 (Cth). He did not appear for the proceeding in Electoral Commissioner of Australian Electoral Commission v Wharton (No 3) [2021] FCA 742 but had made submissions previously in a sequel to an order for substituted service at an interlocutory stage, where he asserted from the bar table that he was a Kooma man and hence the Electoral Act had no application to him, and therefore the Court had no jurisdiction to entertain the proceeding.
Logan J referred to Coe v Commonwealth of Australia [1979] HCA 68 where Gibbs J (at 12, with whom Aickin J agreed), stated:
“The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of the limited kind, is quite impossible in law to maintain.”
Noting that Coe was decided prior to Mabo v Queensland (No.2) [1992] HCA 23, His Honour also referred to Walker v New South Wales [1994] HCA 64, in which Mason CJ upheld a like view, (at 2) stating:
“There is nothing in the recent decision in Mabo v. Queensland [No 2] to support the notion that the Parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent. Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people. Indeed, Mabo [No 2] rejected that suggestion.”
Also noted, was the enduring authority of the view as to an absence of Aboriginal sovereignty or any form thereof expressed by Gibbs J in Coe had recently been affirmed by a majority of the High Court in Love v Commonwealth [2020] HCA 3, and that there was no disagreement as to the enduring authority of Coe, citing Kiefel CJ, (at 29); Gageler J, (at 102-103); Keane J, (at 199-205); Nettle J, (at 266); and Gordon J, (at 356).
“Australian courts before and after Mabo, as well as in the reasoning in Mabo itself, have consistently rejected the existence of Aboriginal or Torres Strait Islander sovereignty…”
And that like conclusions as to an absence of Aboriginal sovereignty were reached by Kirby J in Thorpe v Commonwealth (No 3) [1997] HCA 21 and by Spender J in Turrbal People v Queensland [2002] FCA 1082.
It was held that the proposition which underpins the assertion made by the respondent was contrary to overwhelming and binding authority, and the only conclusion open in law is that the Electoral Act had lawful application to him.