Andrew Roos v Winnaa Pty Ltd

[2018] FWC 3568

[2018] FWC 3568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections (consent arbitration)

Andrew Roos

v

Winnaa Pty Ltd

(C2017/300)

Loretta Roos

v

Winnaa Pty Ltd

(C2017/302)

Bree Dargan

v

Winnaa Pty Ltd

(C2017/371)

COMMISSIONER SIMPSON BRISBANE, 19 JUNE 2018

Application to deal with contraventions involving dismissal – Respondent concedes contravention of s.351(1) – Respondent asserts exceptions in s.351(2)(b) and s.351(2)(a) –Reverse onus in s.361 does not apply – Evidentiary onus on Respondent – Multiple decision makers - Inherent requirements of Cultural Heritage Officer position – Whether there is an inherent requirement to be a Barada Barna person - Whether Respondent genuinely or honestly believed the Applicants were not Barada Barna – Substantive and operative reason for dismissal was failure to provide proof –Failure to provide proof not a positive conclusion that Applicants were not Barada Barna – Respondent fails to meet evidentiary burden to satisfy exception in s.351(2)(b) – Respondent fails to meet evidentiary burden to satisfy exception in s.351(2)(a) – Matter relisted for further submissions on remedy.

1. In 1908 four children whilst playing in or near a creek outside the town of Nebo in Central Queensland were forcibly taken away to Barambah (now known as Cherbourg) approximately 800 kilometres south of Nebo by government authorities. One of those children was Kitchener Brown. The consequences of what happened that day continue to impact on Kitchener Brown’s descendants. 108 years later, on 29 June 2016 Dowsett J of the Federal Court delivered a consent determination in Budby on behalf of the Barada Barna People v State of Queensland (No 7) [2016] FCA 1271 (Consent Determination) granting native title to the Barada Barna people.

1. This decision deals with a controversy that has arisen subsequent to the Consent Determination of Dowsett J, and for reasons that will become apparent involves an emotionally charged dispute about whether or not the decision of an employer to dismiss three employees was motivated by a genuinely held belief that the three dismissed employees were not Barada Barna people. An examination of that dispute is connected to the story of Kitchener Brown.

1. In August 2016 Ms Loretta Roos, Mr Andrew Roos and Ms Bree Dargan made applications under section 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with General Protections applications involving dismissal in accordance with Part 3-1 of the Act. It was asserted in each of the three applications that s.344 and s.351 of the Fair Work Act 2009 had been contravened by their former employer.

1. The matters were not resolved at private conference and s.368 certificates were issued confirming as much. Separate applications were filed by Ms Loretta Roos and Mr Andrew Roos on 18 January 2017 and Ms Dargan on 20 January 2017 for consent arbitration by the Commission. Bree Dargan is the niece of Loretta Roos and cousin of Andrew Roos.

1. Each of the three applications identified the respondent as being the Barada Barna Aboriginal Corporation, however on 20 April 2017 I granted applications in all three matters which were not opposed, to amend the identity of the respondent to each application to be Winnaa Pty Ltd (the Respondent). The claims in relation to s.344 were not pressed.

1. On 3 March 2017 A directions hearing was held where legal representation was granted to parties who sought leave, and directions where issued for the filing of material in the substantive matter with the matter to be heard on 23 and 24 May 2017. Subsequently, an interlocutory issue arose following an objection to the Respondent’s solicitors Dillon Bowers Lawyers continuing to act for the Respondent in the matter.

1. Ms Roos’ representative sought a revocation order of the decision made on 3 March 2017 to grant leave for the Respondent to have legal representation. The kernel of the issue was not representation as such but representation of the Respondent by Dillon Bowers as it was asserted Dillon Bowers had a conflict of interest given its previous role acting in the native title application and subsequent Consent Determination in the Federal Court.

1. On 5 June 2017 directions were settled for the filing of material and hearing of the revocation order application. Subsequent applications for separate orders for attendance and production in connection with the interlocutory hearing on 5 June were declined. In the course of the hearing on 5 June 2017 the Commission was advised that Dillon Bowers had decided to cease acting for the Respondent in the matters, and on that basis it was unnecessary for the interlocutory application to be determined.

1. On 19 June 2017 costs applications were filed by Ms Roos against Winnaa Pty Ltd under s.375B and Dillon Bowers Lawyers under s.376. The costs applications have been adjourned pending the determination of the substantive applications.

1. The Respondent appointed new solicitors Franklin Athanasellis Cullen to instruct Mr J Dwyer of Counsel. Further applications for orders for production of documents were made on 26 June 2017 by the representative of Ms Roos, and on 28 June by the representative of Ms Dargan. Orders for production were issued on 28 June 2017. Subsequent objections to the orders made were filed by the representative of the Respondent and following a hearing to deal with those objections a decision was issued on 27 July 2017 revoking the earlier orders.[1]

1. New directions were issued for the hearing of the substantive matter over three days on 27, 28 and 29 November 2017. On 15 and 16 November, following an application for orders to attend made by the representatives of Ms Roos, orders were issued requiring Mr Jarrod Brown and Ms Carmel Dargan respectively to give evidence at the hearing.

1. Mr K Watson of Counsel instructed by Legal Aid Queensland appeared for Ms Loretta Roos and Mr Andrew Roos. Mr D Fuller of Counsel instructed by the Caxton Legal Centre appeared for Ms Bree Dargan and Mr J Dwyer of Counsel instructed by Franklin Athanasellis Cullen appeared for the Respondent. The three applications were heard concurrently and evidence in each matter was taken as evidence in the other matters.[2] By consent of the parties in the course of the substantive hearing a confidentiality order was issued concerning an exhibit in the proceedings.[3]

1. At the conclusion of the hearing a timetable was agreed between the parties for the filing of closing written submissions. The Respondent subsequently sought an extension to file submissions which was granted and closing oral submissions were heard on Friday 6 April 2018 to accommodate the changed timetable.

Response to applications

1. By way of background it is helpful to set out most of what the respondent said in its second amended response to the three applications. The responses were for all purposes the same. I have set out below parts of the second amended response to the application of Loretta Roos excluding the tracked changes;

“One of the reasons the Applicant was dismissed was because, despite numerous opportunities to do so, she was unable to establish an ancestral connection to the Barada Barna people to the satisfaction of the Respondents. At the time of making the decision to terminate, the Respondent genuinely held the view that the Applicant was not Barada Barna. Such connection is an inherent requirement of employment as a Cultural Heritage team member.

The Respondent has offered DNA testing to assist in the process. The Applicant has not responded to the proposal.

………………

FACTS

1.   The Respondent acknowledges that the Applicant’s employment was terminated on 12 August 2016.

2. The Respondent acknowledges that termination of employment meets the definition of Adverse Action within the meaning of s 342 or the Fair Work Act 2009 (“the Act”).

3.   The Applicant was terminated for a combination of reasons.

4.   The Applicant commenced employment on 22 February 2016 as a Cultural Heritage Officer. The Applicant was employed as a casual employee and was provided with work as and when it was available.

5.   By extension of indigenous ‘lore’ it is established policy and often a contractual requirement that persons filling the role of Cultural Heritage Officer are members of the Barada Barna people. This is an inherent requirement of the role because persons performing this work must inter alia be able to reliably and credibly identify artifacts (sic) and locations of cultural sensitivity.

6.   At the time of employment, there were some doubts as to the authenticity of the Applicant’s ancestral connection to the Barada Barna people. Notwithstanding these doubts, the Respondent elected to give the Applicant the benefit of the doubt, subject to the ancestral connection being established later.

7.   Numerous requests were made of the Applicant, either directly or to family members, to produce evidence of their ancestral connection. As at August 2016, no proof was produced.

8.   In or about July/August 2016 a large amount of work that had been anticipated to continue for the remainder of the year was withdrawn. Consequently, as at early August there was no work available for the Applicant, and none available for the foreseeable future.

9.   It was considered that this was an appropriate juncture to bring the ancestral heritage issue to an end.

10.  Consequently given the failure of the Applicant to establish ancestral connection (despite multiple requests), the Respondent formed the view that the Applicant was not Barada Barna and the Applicant’s employment was terminated.

THE ALLEGED CONTRAVENTION

11. The Respondent concedes that it has contravened s.351(1) of the Act.

12. The Respondent acknowledges that, inter alia, that Applicant was dismissed because the Respondent formed a view that she was not Barada Barna when she was unable to establish an ancestral connection to the Barada Barna people to the Respondent’s satisfaction.

13. The Respondent denies that this amounts to discrimination on the basis of “social origin”.

14. The term “social origin” is not defined in the Act. It is widely regarded as referring to socio-economic demographic. It has no application to the Applicant.

15. The term “national extraction” is not defined in the Act. It is conceded that it applies to whether a person is Barada Barna or not and therefore it has application to the Applicant.

16. Notwithstanding that s.351(1) does apply to the Applicant and has been contravened by the Respondent, the conduct of the Respondent is excluded from the prohibition on discrimination by virtue of s.351(2)(b).

ALTERNATIVE DEFENCE

17. Subsection 351(2)(a) of the Act provides that where the relevant action is not unlawful under any anti-discrimination law in force in the place the action is taken, subsection 351(1) will not apply to that action.

18. Section 104 of the Anti-Discrimination Act 1990 (Qld) (AD Act) relevantly provides that a person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with the AD Act.

19. The Applicant was dismissed in accordance with the Respondent’s policy to only employ Cultural Heritage Officers (CHOs) who have satisfied the Respondent that they are members of the Barada Barna Nation. The purpose of the policy is based in indigenous ‘lore’, which as applied in this case, meant that only Barada Barna People may conduct the important work of a CHO on Barada Barna Country on behalf of the Barada Barna People.

20. The act of dismissing the Applicant because she had not satisfied the Respondent that she was a Barada Barna person was an act done for the welfare of the members of a specific group (the Barada Barna People), which is not unlawful under section 104 of the Anti-Discrimination Act.

21. The Applicant’s dismissal was not inconsistent with the AD Act either because it was done to preserve the cultural integrity of the Barada Barna People and the Barada Barna Nation.

22. Accordingly, not only was the dismissal lawful by virtue of it being because of the inherent requirements of the Applicant’s position (s 351(2)(b)) but it was also lawful by virtue of being lawful under the AD Act.”

1. It is clear from the responses that the Respondent admitted it dismissed the Applicants from their employment, and their dismissal was adverse action within the meaning of s.342(1) of the Act.[4] The Respondent also admitted that the dismissals were because of the Applicants’ national extraction which is an attribute named in s.351(1) of the Act.[5]

1. It is not in dispute that the decision to dismiss occurred on 11 August 2016 and that decision was subsequently communicated to the Applicants on 11 and 12 August 2017. The parties have consented to arbitration in accordance with s.369 and the statutory tests for the arbitration to proceed have been met.

Witnesses and written submissions

1. The Applicants’ cases included six witnesses in total that filed statements in the matter. Ms Loretta Roos,[6] Mr Andrew Roos,[7] Mr Gavin Brown,[8] Professor Emma Kowal,[9] Ms Bree Dargan,[10] Mr Les (Charles Budby).[11]

1. Mr Andrew Roos, Mr Gavin Brown, Ms Emma Kowal and Ms Bree Dargan were not required for cross examination.

1. Ms Carmel Dargan’s was ordered to attend to give evidence and did so on 27 November 2017. Ms Carmel Dargan said she had been reluctant to give evidence however changed her mind having seen the statements of witnesses for the respondent.[12]

1. Loretta Roos and Andrew Roos filed an outline of submissions[13] reply submissions,[14] closing written submissions[15] and closing written submissions in reply.[16] Bree Dargan filed an outline of submissions,[17] submissions in reply,[18] closing written submissions[19] and closing written submissions in reply. [20]

1. The Respondent’s case included five witnesses who provided statements. Mr Graham Stanley Budby,[21] Mr Cecil Albert Brown Junior (also known as Pickle)[22], Mr Gregory Brown, [23]Ms Luarna Mitchell[24] and Mr Jarrod Brown[25].

1. An outline of written submissions was filed by the respondent on 1 November 2017 and closing written submissions on 2 March 2017.

EVIDENCE

1. Ms Loretta Roos gave evidence that she held a Cultural Heritage Field Officer position (CHO position) with Winnaa Pty Ltd, but prior to that the CHO position was with two other entities that were controlled by the Barada Barna people, namely Woora Consulting Pty Ltd (Woora) and Windbrake Pty Ltd (Windbreak).[26]Loretta Roos said Woora carried out cultural heritage work for the Barada Barna Charitable Trust (the BBCT),[27] and the current shareholders of Woora are Mr Graham Budby, Ms Stacey Kreyts and a company called Woora Nominees Pty Ltd (Woora Nominees). Ms Roos said Mr Frank Budby was also a beneficial shareholder.[28]Loretta Roos said that the BBCT was established by trust deed dated 12 March 2010.[29] Ms Roos said the Trustee for BBCT is Barada Barna Ltd.[30]

1. Loretta Roos said that when she started with the Respondent there were three directors: Mr Gregory Brown, Mr Cecil Brown Junior, and Mr Les Budby. However Ms Roos said that Les Budby removed himself as a director in August 2016 when Ms Roos was dismissed.[31]

1. Loretta Roos said that she understood that the Respondent’s Board of directors did not have Board meetings to decide issues as all decisions relating to the Respondent were made by the BBCT Board and/or the Barada Barna Aboriginal Corporation (BBAC) Board.[32]

1. Loretta Roos said that the BBAC was registered with the Office of the Registrar of Indigenous Corporations (ORIC) on 19 January 2016. Ms Roos provided a copy of the ORIC Corporation extract dated 1 March 2017 which included the list of directors at the time. Loretta Roos noted that her name appeared on page 18 on the list of BBAC members. Loretta Roos said this was after she had completed two forms, a Confirmation of Aboriginality of Barada Barna Identity form, and a Schedule 4 – Application for membership form. Ms Roos provided copies of both forms.[33]

1. Loretta Roos said that it was Les Budby in his capacity as a director of the Respondent who reported to the Board and all decisions relating to the operations of the Respondent were made by the BBAC Board including recruitment and termination of employees. Ms Roos said she understood only members of the BBCT Board could authorise payment of wages for ‘the Respondent’s employees.[34]

1. Loretta Roos’ grandmother’s name was Ms Cora Attenborough and her grandfather was Kitchener Brown. Her mother’s name was Eileen Kerr (nee Brown). Her maiden name is Kerr but her married name is Roos. Her father’s name is Klauss Bormann. Christine Kerr is her twin sister. Colleen Kerr is her older sister. Paul, Karl, Robbie and Kurt Mikkelsen are her brothers.

1. Loretta Roos said Kitchener Brown was always considered a Barada Barna man. Kitchener Brown was listed as an apical ancestor on a number of previous Barada Barna native title claims.[35] Loretta Roos said that Kitchener Brown was the son of Lizzie Payne and Lizzie Payne is listed as an apical ancestor on the Federal Court consent determination.[36]

1. Loretta Roos said that Albert ‘Bully’ Brown (deceased) was her mother’s brother and was her blood uncle and he was one of the people comprising the applicant in previous native title claims.[37]

1. Loretta Roos said that the BBCT authorised her to receive the ‘Elder payment’ (a consequence of being the representative of the family). Ms Roos said she has received numerous such payments of around $1500 a year.[38]

1. Mr Andrew Roos said that he is a Barada Barna man through his mother Loretta Roos.[39] He said he started working for the Respondent Winnaa (then called Woora) as a CHO. He said he got the position through his mother, who was contacted by her cousin Carmel Dargan. He said he was in the position until 12 August 2016 when he was dismissed.[40]

1. Andrew Roos said he was a Barada Barna man and he was performing the duties of the position without any issues. He said his granduncle Mr Albert Brown, was an applicant on previous applications for native title made by the Barada Barna people. He said he had always understood their connection to Country was established through Kitchener Brown, who is the descendent of Lizzie Payne.[41]

1. Ms Bree Dargan is the other Applicant. Bree Dargan said her parents are Shirley Anne Dargan and Timo Peltohaka. She said her mother is Aboriginal but her father is not, and her mother’s parents were May (“nanna”) and Frank Dargan and they had 13 children who are spread all over Queensland.[42] Carmel Dargan, who was a director of BBAC, is her Aunty.

1. Bree Dargan said that it was not until 2008 that she remembered learning about what country her ancestors had come from. She said she learned about her grandmother’s father, Kitchener Brown. Ms Bree Dargan said she learned about Kitchener Brown because his remains were exhumed and returned to his Country. Bree Dargan said she is Barada Barna through her descent from Kitchener Brown.[43]

1. Bree Dargan said she got a lot of information about Barada Barna through her Aunty Carmel Dargan. Bree Dargan after becoming a member said she started to attend information sessions in 2014, 2015 and 2016. Bree Dargan said topics of discussion included jobs going with the mining companies on Barada Barna land, social policy funding, Indigenous Land Use Agreements, and Widi claim and other native title matters.[44]

1. Carmel Dargan said that her descent as Barada Barna stemmed from 1998 when Greg Brown’s father Norman Brown approached her to be a research officer for the Birri-Gubba nation. Ms Carmel Dargan said they did not affiliate with her mother’s side who comes from Burketown, the Gangalidda side, and her father was from the Northern Territory.[45]

1. Carmel Dargan said she first worked as a research officer with Seleste Walsh. Carmel Dargan said Seleste Walsh is the daughter of Linda Budby, or Linda Walsh Barlu and her sister is Luarna Mitchell who is on the BBAC Board. Carmel Dargan said she and Seleste Walsh worked together as research officers travelling from Charters Towers, Townsville and Rockhampton interviewing elders regarding their connection to Country.[46]

1. Carmel Dargan said that Seleste Walsh’s great grandmother was Maggie Barker and Carmel Dargan and Seleste Walsh went to visit Seleste’s grandmother Nanna Ida Buckley in aged care in Charters Towers. Carmel Dargan said Nanna Ida Buckley said her brother was Kitchener Brown, so there was confusion with Maggie Barker’s side. Ms Carmel Dargan said she obtained a 1998 report from anthropologist Rosemary O’Grady that stated Lizzie Payne had two sons, grandfather Kitchener Brown and Grandad Albert.

1. Carmel Dargan said she had never heard use of the words “community brother” or “community brothers”, or conditional or provisional acceptance as Barada Barna.[47]

1. Later in her evidence Carmel Dargan agreed that the reference to Nanna Ida was a reference to Nanna Ida Darwin.[48] Carmel Dargan said Seleste Walsh provided a report of the interview with Nanna Ida Darwin where she stated she was Kitchener Brown’s sister to Mr Jeff Dillon of Dillon Bowers Lawyers. Carmel Dargan said she did not know if Nanna Ida was related to Lizzie Payne or Maggie Barker.[49]

1. Carmel Dargan said Nanna Ida Darwin was being interviewed because the Birri-Gubba Nation Board (including Uncle Frank Budby) sent around research officers to interview people on their side.[50]

1. Carmel Dargan said she was director of the BBAC from 2013, and officially from 2014 and continued to be a director until the meeting of 11 August 2016.[51] During her evidence Carmel Dargan was taken to paragraph 11 of a statement she made for the Federal Court proceedings which read as follows:

“..The only way a person can be a Barada Barna person is through bloodline and ancestry. You can’t just become a Barada Barna person. You have to have the bloodline connection.”

1. Carmel Dargan appeared to indicate she agreed with that statement.[52] Carmel Dargan accepted as a hypothetical proposition that if it could be proven conclusively that Kitchener Brown was a descendant of a different group that she was not part of the Barada Barna.[53]

1. Mr Les Budby gave evidence he is a Barada Barna elder and until recently a director of the BBAC, Winnaa, and the BBCT. He said he had known Loretta Roos for a number of years and from October 2016 until October 2017 was in a relationship with her.[54]

1. Les Budby said many families in the region were forcibly removed and dispersed all over the place. He said it is obvious to him that there are many people out there who are Barada Barna people by descent but who do not know where they come from, and this is one of the tragedies of the stolen generations.[55]

1. Les Budby said he had never heard of any provisional or conditional recognition as Barada Barna and a person is either recognised or not. He said he had never heard of a family being accepted as Barada Barna subject to providing proof. He said it can be complicated and referred to the example of Maggie Barker and some of his family believing she was Wiri, and some believing she is Barada Barna. He said sometimes investigation provides an answer and sometimes it does not.[56]

1. Les Budby said Greg Brown dominated the BBAC Board and got his way by securing the votes of those he held influence over such as his son Jarrod Brown. He said there was an alliance involving Greg Brown, Cecil Brown Junior, Graham Budby, and before their disagreement, Gavin Brown. Les Budby said evidence of this can be seen from the conduct of the Board on 11 August 2016 when he, as one of the three directors of Winnaa, project manager of Winnaa and site supervisor on the ground, had no involvement or discussions regarding the dismissal of the Applicants.[57]

1. Gavin Brown said all decisions relating to the companies associated with the BBAC were controlled by the BBAC Board, and Greg Brown and Cecil Brown Junior controlled the BBAC Board through an alliance they had. Gavin Brown claimed the alliance consisted of Greg Brown, Cecil Brown Junior, Jarrod Brown, Graham Budby and Luarna Mitchell.[58] Gavin Brown also claimed that there was a rule that if a director removed a member of their family line then the other Board members (each representing a different family) did not ask questions or object.[59]

1. Gavin Brown said there was only one occasion when Greg Brown overruled the Board, and this matter involved the dismissal of Gavin Brown’s son Steven Brown. Gavin Brown gave evidence to the effect that when Greg Brown failed to convince the BBAC Board to dismiss his son they then said the decision was not the BBAC Boards to make as Cecil (Brown Junior) and himself were the directors of Winnaa and the decision was theirs alone and Steven Brown was dismissed.[60]

1. Gavin Brown claimed Greg Brown had an agenda to intimidate him because he introduced another family member to the BBAC who Greg Brown did not approve of. Gavin Brown said Greg Brown also dismissed his other son.[61]

1. Mr Graham Budby gave evidence that he is a Barada Barna elder and has known he is a Barada Barna person since he was very young as his father told him. He said his apical ancestor is Polly Mary (wife of Robert Noble and Bert Fox). He said he is also a blood descendant of apical ancestor Maggie Barker. He said he has been a Board member of BBAC and the BBAC treasurer since July 2016.[62]

1. Graham Budby’s evidence included that when he first started doing cultural heritage work in 1996, Barada Barna CHO’s were assisted by non-Barada Barna elders because they did not have a sufficient number of trained workers to do the work required. Graham Budby said his father, as a Barada Barna elder, had authority to invite people onto Country to do cultural heritage work. He said for the same reasons, his father again invited non-Barada Barna persons onto Country in the early 2000’s to assist in cultural heritage work.[63] He said the non-Barada Barada persons were Aboriginal persons. He said information was shared with archaeologists who were white people.[64]

1. Graham Budby said to the best of his recollection, with the exception of archaeologists, he did not believe that non-Barada Barna persons have been invited onto Country to assist with cultural heritage work since around 2005.[65] He said that this changed because there were more younger Barada Barna people coming through. He said in the course of a year, between eight and twelve cultural heritage workers would be employed on Barada Barna Country, and 24 during the (mining) boom. He repeated that no non-Barada Barna had been employed since 2005.[66]

1. Graham Budby gave evidence that his father shared with him that to be a Barada Barna person you must be related, by blood, to an apical ancestor. He said the apical ancestors are named in the Consent Determination.[67]

1. Graham Budby said the Barada Barna people do not recognise kinship or adoption and that this has always been the case. He said any recognition to an individual or family line that are yet to prove their blood relationship to an apical ancestor is only provisional recognition and the individual or family line must provide proof of their blood connection to an apical ancestor.[68]

1. Graham Budby referred to paragraph 7 of his 2015 statement to the Federal Court and affirmed his view that if it is found or the general view is formed that someone does not have the correct descent lines, they may cease to be recognised as a Barada Barna person, and this was the case for the descendants of Kitchener Brown.[69]

1. Graham Budby accepted that the ten apical ancestors named in the Consent Determination were the only ones named because they were the only ones where a connection on the anthropological evidence could be established at that time.[70] He accepted that the size of the Barada Barna nation was reduced over time including by external factors including massacre, pastoralists, and disease. He also accepted that anthropological evidence establishes that the Barada Barna people were scattered throughout Queensland if not Australia by for example, forced removal and otherwise through events known as the stolen generation.[71] He agreed that the forced removal at Nebo in 1908 of the four children including Kitchener Brown was one of those events.[72]

1. Graham Budby accepted that the reason he gave for the Barada Barna people not recognising adoption because of it creating division within the ten families was a recent reason.[73]

1. Cecil Albert Brown Junior (Pickle) gave evidence that he is a director of the BBAC and of the Respondent. He said he is a Barada Barna elder and was one of the two applicants in the Federal Court proceedings which resulted in the conferring of native title rights. He said he is a descendant of Lizzie Payne, his grandfather’s (Albert Brown) mother.

1. Cecil Brown Junior said that if a new applicant (for membership of BBAC) says they are Barada Barna, they must satisfy the Barada Barna people that they are a blood descendant of an apical ancestor. Cecil Brown Junior gave a range of reasons as to why he believed the Kitchener line were not Barada Barna including discussions with his father, a lack of proof, the anthropological and genealogical expert reports and discussions with Delray Budby. Further, he said given the circumstances in which Kitchener Brown was forcibly removed from Nebo creek; Kitchener may have been confused as being a Barada Barna person.[74]

1. Cecil Brown Junior gave evidence about discussions with his father Cecil Noel Brown (Chum) and his father.[75] Cecil Brown Junior said that he was sceptical about Carmel’s claim (about having proof of connection) because when he obtained copies of his grandfather’s birth certificate and marriage certificate, he kept an electronic copy and made eight hard copies.[76]

1. Cecil Brown Junior appeared to accept the proposition that a person forcibly removed as a child might not have any documents showing their ancestry, and might not know very much about their ancestry. He agreed that there are other current members of the BBAC who haven’t provided documentary proof of connection, and he was not aware of any current proposal to cancel their membership.[77]

1. Cecil Brown Junior said that because of lack of records and because Nebo was a trading town, in his mind, he though it quite possible that Kitchener and/or Daisy had been passing through the area with their families when they were taken from the side of the Nebo creek in 1908. He said he thought the confusion over Kitchener’s origins could have been further compounded by the fact that all four children taken from Nebo creek in 1908 were “given” the surname (Brown). He said as well, he understood that all four of those children were associated with Barada Barna people because Grandfather Albert and Grandpa Norman were both definitely Barada Barna.[78]

1. Cecil Brown Junior was taken to his statement for the Federal Court where he said “The elders know all the generations in detail and would not be fooled by someone wrongly claiming to be one of us.”[79] He was then taken to his father’s statement for the Federal Court where his father said he learned about his identity as a Barada Barna person from his dad and his uncles, Norman and Kitchener. He appeared to accept that some of his knowledge about being Barada Barna came from Kitchener Brown.[80]

1. It was put to Cecil Brown Junior that it didn’t matter to his father whether Kitchener Brown was biologically related to an apical ancestor for him to be recognised as Barada Barna. He responded that Kitchener would have been recognised as coming from Barada Barna Country. He did not agree with the proposition that would make him a Barada Barna person in his father’s eyes.[81]

1. Cecil Brown Junior said that to be a Barada Barna person you must be related by blood to a person who is recognised by all Barada Barna people as being an apical ancestor. He said this rule was passed down to him long before the Federal Court proceedings. He said the BBAC keep to this rule because they have seen in the past other claim groups where non-family members have come in and destroyed the tribe.[82] He said they do not accept adoption, which is different to the Widi people, and this is reflected in the Consent Determination.[83] Cecil Brown Junior also said that the BBAC does not go by adoption for eligibility because it could lead to too many people wanting to join their claim group.

1. Gregory Stephen Brown (Greg Brown) gave evidence he is the chairperson of the BBAC and a director of the Respondent, Winnaa Pty Ltd. He said he is a Barada Barna person descended from Maggie Barker, an apical ancestor named in the Federal Court’s consent determination.[84] He explained that following the Consent Determination the BBAC became trustee of native title for the Barada Barna people. He said the purpose of the BBAC was to preserve the culture, health and wellbeing of the Barada Barna people and provided a copy of the BBAC Rule Book with his evidence.[85]

1. Greg Brown said that based on the knowledge that has been imparted to him by his father and other Barada Barna elders, he knows it to be true that to be a Barada Barna person you must be related by blood. He said elders pass down information to younger generations about where people are from, and it is unusual to not know where you come from and who your ancestors are. Greg Brown said that the apical ancestors are named in the Consent Determination, however the belief that Barada Barna must be related to an apical ancestor predates Consent Determination, and a person must be a blood descendent of an apical ancestor to get the benefits of Barada Barna membership.

1. Greg Brown said that Barada Barna people do not recognise kinship (adoption) as effectively making a person a Barada Barna person. The Consent Determination states that Native Title Holders for “the Barada Barna people are the descendants of one of more of the following people…”. Greg Brown said a person may be given collective recognition as a Barada Barna person but they must also provide proof of their blood connection to an apical ancestor.

1. Greg Brown said if traditional owners of other lands wish to come on Barada Barna Country they must seek permission, and Barada Barna people seek permission to go onto another person’s country. Barada Barna people use the terms “brother”, “sister”, “Grandad”, “Grandma”, “Aunty” and “Uncle” to describe biological and non-biological relationships.[86]

1. Greg Brown accepted that his father believed Kitchener Brown was a Barada Barna man, or recognised him as a Barada Barna man despite knowing that he was not biologically related to an apical ancestor.[87]

1. It was put to Greg Brown that the report of anthropologist Dr Lee Sackett said he was inclined to the view that Maggie Barker likely was Wiri rather than Barada Barna. Greg Brown referred to the Federal Court Consent Determination but accepted the report expressed a different view.[88]

1. Greg Brown said in or around December 2015 the BBAC established a separate entity Windbrake Pty Ltd to undertake cultural heritage work on behalf of the Barada Barna people, and in around February 2016 changed the name of that entity to Winnaa. He said Winnaa reports to the BBAC and the Board oversees the activities of Winnaa, and the Board decided on the recruitment and termination of Winnaa employees engaged in cultural heritage work.[89]

1. Greg Brown said that as recognised in the Consent Determination, the Barada Barna people have occupied the Country described as the determination area since ancient times. He said to be a Barada Barna person you must be connected by blood to an apical ancestor, and the apical ancestors are listed in Schedule 3, Part 1 of the Consent Determination. He said the requirement to be related to an apical ancestor is contained in their Rule Book at clause 5.1.[90] Greg Brown said there was no alliance between himself and other directors of the BBAC.

1. Luarna Mitchell (nee Walsh) gave evidence that she is a director of the BBAC, and that she is descended from Maggie Barker whose daughter is Ina Darwin, her great grandmother, and Charles Budby (father of ‘Saltbush’ George Budby) who is her great, great, great grandfather.[91]

1. Jarrod Brown gave his evidence via telephone from the Woodford Correctional Centre. He said he was a director of the BBAC from in or around mid-2016 to on or about 20 October 2017. He said he is a Barada Barna man through his father Greg Brown, his grandfather Norman Brown, descendants of Maggie Barker.[92]

1. Jarrod Brown said that he had been told by his father and directors of the BBAC that to be a Barada Barna person, you must be born into a Barada Barna family and have a blood relationship to an apical ancestor.[93]

Early work on native title

1. Les Budby said that he had been involved in Barada Barna cultural heritage work for approximately 20 years, and was the ‘Applicant’ on a previous BBKY4 (Barada Barna, Kabalbara, Yetimaria) native title claim as well as the Barada Barna claim.

1. Les Budby said on the BBKY4 application, there was a meeting in Rockhampton in around 2000 and Uncle Albert “Bully” Brown was representing the Kitchener Line. He said only Uncle Frank Brown and Uncle Bully Brown were involved at the time and he had no idea of the extent of the Kitchener Line until Carmel Dargan told the BBCT.[94] He said Carmel Dargan raised concerns about her side of the family not being involved in the claim and following a meeting in Townsville, Carmel Dargan was accepted onto the BBCT Board. Greg Brown was also admitted at this time to represent his family.[95]

1. Les Budby said he recalled one time around 2006 before the BBKY4 native title claim was registered that he was approached by Uncle Norman Brown, Greg Brown’s father, and Uncle Frank. He said they asked him if his family would claim Maggie Barker as their apical in order to strengthen the Brown connection to the claim, instead of their proven connection through Saltbush George. He said this was when there was conflict with the Wiri over whether Maggie Barker was Wiri or Barada Barna. He said prior to the Barada Barna claim being registered, Saltbush was their Barada Barna apical, and Maggie Barker was their Wiri apical.[96]

1. Les Budby said the Barada Barna people were originally assisted by South Queensland Land Council (SQLC) in the native title claim. He said he recalled attending a meeting with SQLC in Brisbane with Uncle Frank, Cecil Brown Junior, Peter Gore and Jeff Dillon, as well as the SQLC lawyer and two anthropologists. He said SQLC called the meeting because it was not content with Maggie Barker and Kitchener Brown being included in the native title application as apicals, and they would only assist with the claim if they were removed.

1. Les Budby said Frank Budby was a senior elder, and knew a lot about family connections to Barada Barna. Les Budby said he was one the Applicants on the claim and a significant leader of the Barada Barna, and he felt Maggie and Kitchener were connected, so along with support from himself and Cecil Brown Junior they decided to part ways with SQLC and instruct Jeff Dillon to act in the native title claim. He said they then sought their own anthropological evidence to support the inclusion of Maggie and Kitchener resulting in the Gorecki and McLean reports.[97]

2008 Kitchener Brown’s repatriation to Country

1. Cecil Brown Junior said that in 2008, his Uncle Norman (son of Grandpa Norman) asked him to take over from him with the arrangements for removing the remains of Uncle Kitchener Brown from Kingaroy to Nebo. He said his father (Cecil Noel Brown also known as Chum) was the only person to attend Kitchener’s burial in Kingaroy in 1959. Cecil Brown Junior said in or around 2008 his father and he went to Kingaroy to oversee the exhumation of Kitchener’s remains. He said they arranged for Uncle Kitchener’s remains to be buried in Nebo Cemetery and for a plaque to be erected by the banks of the creek where he, Grandpa Norman, and his Grandfather Albert were taken.

1. Cecil Brown Junior said at that time they were under the belief that Kitchener Brown was a Barada Barna person. He said it was not until they started asking all family members for their proof of descendancy that doubts about whether Kitchener Brown was Barada Barna were raised. He said that in hindsight, had they known back then that Kitchener was not a blood relative, they would not have taken him back to Country.[98]

1. Loretta Roos also gave evidence about Kitchener Brown being repatriated to Country in 2008 and the importance of this, and provided evidence of media coverage at the time.[99]

1. Greg Brown said that his father Norman Albert Brown told him words to the effect:

“Uncle Kitchener died in a pauper’s grave in Kingaroy. No one went to his funeral – none of his family members went, only Chum. I promised my dad that I would bring Uncle Kitchener back to Country – from the land which he was taken from and give him a proper burial.”

1. Greg Brown said “Chum” was a reference to Uncle Cecil Brown (Snr), son of Grandad Albert Brown who was forcibly relocated to Barambah with Grandad Kitchener, Grandma Daisy and his grandfather Norman. Greg Brown said because his dad made this promise to his father, his dad arranged for Uncle Kitchener’s remains to be repatriated, and this occurred in 2008. Greg Brown said this was well before his enquiries about whether Kitchener was Barada Barna and before the research for the native title claim was undertaken.[100]

Early questioning about Kitchener line

1. Cecil Brown Junior said that in around 2012 the Board started asking the Kitchener line for proof of their relationship to an apical. He said it was around this time that he recalled Carmel Dargan saying words to the effect of; “Our apical is Maggie Barker”. Cecil Brown Junior said that in response to Carmel Dargan asserting she was descended from Maggie Barker at a number of Board meetings, he along with other Board members including Graham Budby, Greg Brown and Les Budby asked questions of Carmel including asking for evidence, or whether she had birth certificates or other documents that would satisfy them about being Barada Barna. Cecil Brown Junior claimed that Carmel Dargan said that she had proof and had given it to research with Rosemary O’Grady.[101]

1. Cecil Brown Junior also said that sometime around 2014, he had a discussion at a motel in Mackay with Uncle Norman (apical Maggie Barker’s grandson), Uncle Frank Budby and his dad about Kitchener Brown. He said he recalled words to the effect said by his father that Grandad Kitchener, Grandad Norman and his dad Albert were not blood brothers but they were community brothers taken from the same area but not biologically related.[102]

1. Cecil Brown Junior said that following the discussion with Uncle Norman and Uncle Frank, he asked his father if he knew about his Uncle Bully saying that Uncle Frank Brown was adopted, and his father told him that at some stage, “Bully” was talking to Uncle Frank, Uncle Norman and himself when Bully said his father (Kitchener) was from the Gulf, the Northern area, up near Normanton.

1. Cecil Brown Junior said he understood his father’s reference to “Bully” was to Albert Brown, son of Kitchener Brown, and that he believed his father believed that Kitchener, Albert and Norman were not blood brothers but community brothers.[103]

1. Cecil Brown was referred to the statement of Albert Norman (Bully) Brown prepared for the Federal Court and paragraphs 3, 23, 43 and 44 of that statement where Albert Norman (Bully) Brown discusses himself and his father being Barada Barna. It was put to him that he may have misremembered what his father had told him. He rejected that proposition.[104]

1. Greg Brown said that his father Norman Albert Brown told him about his father Norman Barker renamed Norman Brown being taken to Barambah. Greg Brown said his father told him words to the following effect:

“In 1908, Grandad Albert, Grandad Kitchener, Grandma Daisy and your Grandfather Norman Barker were playing near the Nebo River when the authorities collected them and forcibly relocated them to Barambah (now known as Cherbourg).

At the time Grandad Kitchener, Grandad Albert and Grandma Daisy were about 8 years old and your grandfather Norman was around 12. When they arrived in Barambah they were given the surname Brown because of their skin colour. So our surname should be Barker not Brown.

When the children told others they were taken from Nebo, they gathered with Barada Barna people who had also been relocated to Barambah.

Grandad Albert’s mother was Lizzie Payne.

We don’t know who Grandad Kitchener’s or Grandma Daisy’s parents are. Grandad Kitchener was not from our country.”[105]

1. Greg Brown said approximately ten years ago, he recalled a discussion that he had with his father, and his father said words to the effect of “Dad, Kitchener and Albert were community brothers.”

1. Greg Brown said he understood that to mean they were not biologically related. Greg Brown said about three to five years ago he recalled a discussion he had with his father and his step mother Judy, where his father said words to the effect:

“Bully said to me and Judy that his mum and dad were from the Gulf Country and that he knew that Kitchener, Albert and Norman were not biologically related, they were community brothers because they were taken from Nebo together.”

1. Greg Brown was referred during cross examination to a statement of Albert Norman (Bully) Brown of 18 March 2015 made for Federal Court proceedings, and various parts of the statement where Albert Norman (Bully) Brown gave evidence his father Kitchener Brown was a Barada Barna man, and was from Nebo. It was put to Greg Brown that he may have misremembered what his own father had told him and he denied that.[106]

1. Greg Brown said he remembered in or around 2013 being present at Board meetings when Carmel Dargan was asked who her ancestor was and she responded Maggie Barker, because she was the mother of her grandfather Kitchener Brown. Greg Brown said he thought that was very interesting because he is descended from Maggie Barker himself. He said at a Board meeting whilst Carmel Dargan was present he subsequently produced Maggie Barker’s death certificate that listed her three children that did not include Kitchener Brown. He claimed when he produced the death certificate Carmel Dargan responded by saying “Well, what can I say.”[107]

1. Carmel Dargan gave evidence that she did not believe that that document was ever produced in a board meeting because she didn’t recall ever seeing such a document, and if it was produced then it would have been in the minutes. Carmel Dargan said she did not say what Greg Brown claimed.[108] During cross examination Greg Brown said he thought the Board meeting he was referring to was 2015. He rejected the proposition that the exchange did not happen at all.[109]

Attendance Sheets at various Meetings 2011 – 2014

1. Cecil Brown Junior gave evidence that on a number of occasions he was “on the door” of Barada Barna meetings checking that attendees were on the Barada Barna membership list held by the ORIC. He said he observed that members of the Kitchener Line were nominating different apicals. Some nominating Lizzie Payne, some were nominating Maggie Barker, some claimed Kitchener Brown and others were claiming May Dargan. He provided extracts of various attendance records for meetings on 28 May 2011, 3 March 2012, 3 October 2014, 4 October 2014, 20 October 2014 and 22 November 2014.[110] Greg Brown gave similar evidence.[111]

Barada Barna Limited meeting 10 November 2014

1. Graham Budby said that on or about 10 November 2014 he was invited to attend a meeting of directors of Barada Barna Limited in his role as company secretary. He said at that meeting he recalled a discussion to the effect that all Barada Barna people must provide proof of their blood line connection to an apical ancestor to receive the benefits of the Barada Barna Charitable Trust. He said the action list from the meeting included that Carmel Dargan was asked to prove her apical ancestor connection. Graham Budby attached to his statement a copy of the minutes of the 10 November 2014 meeting. The minutes record a dot point on the matter under a heading of Other Business.[112]

1. Cecil Brown Junior said the requirement to be a bloodline descendant of an apical to be entitled to claim the benefits of the BBCT was confirmed at the meeting of directors of Barada Barna Ltd on 10 November 2014. He attached a redacted copy of the minutes to his first witness statement.[113] He said that although his name was not on the list of attendees, he did attend the meeting and said they were accurate.

1. Greg Brown said he attended this meeting and also referred to the section of the minutes referred to by Graham Budby above. He said to his knowledge Carmel Dargan never produced proof of her family connection to an apical ancestor.[114]

Action Points from Board Meeting on 11 November 2014

Cecil Brown Junior provided with his evidence a redacted copy of a document headed ‘Action Points’ from the Board Meeting Held on 11 November 2014.[115]

1. The Action Points noted that Carmel Dargan was required to provide more evidence of the Kitchener Line’s apical proof, and to produce the research she said she had undertaken with Rosemary O’Grady. Cecil Brown Junior said to his knowledge the research he said Carmel spoke about at the Board meeting has never been produced.[116]

Meeting 21 March 2015

1. Loretta Roos said that she attended a meeting in Townsville on 21 March 2015 with Mr Dillon and members of the BBCT Board. Loretta Roos said that during the meeting Mr Dillon advised the BBCT directors and herself on legal issues including the role of adoption within the Barada Barna people.

1. Loretta Roos said that Jeff Dillon explained to those present at the meeting that it was critical to present a unified front to the Judge at the Federal Court in order to get the consent determination. Loretta Roos annexed to her statement a copy of the minutes of the meeting. Loretta Roos said she accepted this advice.[117]

1. The minutes of the meeting on 21 March record the following discussion. Where initials are recorded in the minutes I have inserted a name as identified in the minutes;

   “ …….

   LB (Les Budby) I stated yesterday to the Dargan family that I think it’s necessary to minute this meeting. We have done anthropological research to show connection so from my point of view that’s done and dusted and is no longer an issue. All elders/medical payments etc. will be back to normal this Monday.
   It was agreed that the Dargan’s would be referred to in the future as Kitchener Brown’s descendants.

   GB (Greg Brown) so would we like to start by going around the table – LR (Loretta Roos) you can start?

LR (Loretta Roos) I’m pretty sure a lot of this got dealt with in Moranbah and Mackay

GLENB (Glen Brown) so going back to descendancy – Kitchener Browns Descendants includes my father downwards?

LB I won’t go back and forth with this issue. The adoption issue is on hold. But anyone who receives benefits and have will continue to.

GLENB produces Delegate’s decision which refers to adoption

JD (Jeff Dillon) I think so. Going on all the interviews that’s the consensus people have come to. There’s plenty of people in Barada Barna who are adopted but they need to be recognised by the Claim Group as being part of the Claim Group.

GLENB well I’m putting this forward to be looked at and I want a decision to be made on it

CD it was brought up on a business sense in relation to other adopted children Even Rosemary O’Grady accepted his …..as Barada. There was no hiding anything and it states in Rosemary’s papers that he’s Barada as stepfather.

JD It is my view is adopted people are in the Barada Barna Claim Group IF recognised collectively. Certainly my advices to the directors would be until that’s decided, people who have been involved should stay involved.

GLENB exactly

JD (but I think it’s an issue that will be raised and addressed with everyone

LB I wasn’t aware of the document but I think we can go away and discuss it

SD (Shirley Dargan) so those three points, would they have accepted Uncle Frank through the documentation?

JD it comes down to the claim group

SD why can’t the three applicants who signed it recognise adoption

JD because really it’s the entire claim group who needs to make that decision

GLENB but 80% of the claim group wouldn’t know who’s who

JD well that’s a matter for directors but it has to be a wider group so that there’s collective recognition

CD then you’d have to define ‘who are adopted children’

LB my own personal view is that if you go back to an apical ancestor and have direct descendancy then you’re recognised. As you go down the line obviously the connection is weaker and would require stronger consideration but we need to go away and discuss this point.
…..”

1. Les Budby said that the inclusion of the Kitchener Line was discussed at this meeting and he stated that as far as he was concerned the issue was ‘done and dusted’.[118] Loretta Roos also referred to Les Budby saying this in the meeting when he was discussing the inclusion of the Dargan family and descendants of Kitchener Brown.[119]

1. Greg Brown accepted that the view Jeff Dillon expressed in the meeting about adoption was not contradicted.[120] Greg Brown said he believed Les Budby was referring to reinstatement of payments to the Kitchener Line. He said these payments were temporarily ceased because of concerns that the Kitchener Line did not have a bloodline connection. He said the payments were reinstated as they came to a view that the issue should be determined in a general meeting.[121]

1. Greg Brown agreed during cross examination that the recognition of a person who hasn’t proved their bloodline as Barada Barna is a matter to be determined by the members of the BBAC as a whole. He accepted the proposition that it is possible for someone who hasn’t proved a bloodline connection to be recognised as Barada Barna by a decision of the members of the BBAC as a whole.[122]

Barada Barna Ltd Board Meeting 19 June 2015

1. Cecil Brown Junior gave evidence about a Board meeting on 19 June 2015 and said he recalled that all directors of Barada Barna Ltd including Carmel Dargan were asked to provide proof of their apical ancestor to archaeologists Liz Hatte and Colin McLennan. He said the Board asked Ms Hatte and Mr McLennan to undertake research to help preserve Barada Barna knowledge and produce display boards and booklets and the family history of each apical. He provided an extract of the minutes of the 19 June 2015 meeting.[123]

Meeting 20 June 2015

1. Ms Roos referred to a further meeting of the Barada Barna Ltd Board on 20 June 2015 and provided copies of the minutes of that meeting.[124] The minutes include the following discussion;

“……

“JD (Jeff Dillon) – two outstanding issues

ADOPTION

Adoption is an entire Groups collective decision.

Glen Brown thinks his father Frank Brown, who was adopted into the Group, should be recognised.

JD in as far as Glen’s situation goes, what do the Directors say:

LB (Les Budby) I stated from the word go that we would look at each case – case by case – uncle frank brown has been recognised for a long time so I have no problem with accepting and recognising Frank. But I don’t want to go in a situation where it’s open slather for everyone.

GlenB (Glen Brown) I guess I want a decision on my case. Am I entitled to welfare?

LB the only person we’ve put on hold is yourself and it’s because the directors have needed to consider it

CB (Cecil Brown) we recognise that Uncle Frank was Kitcheners (sic) son. To go down the line now, it really needs to be considered at a big meeting.

GlenB what needs to be decided

CB adoption in general

LR (Loretta Roos) so that piece of paper that recognises adoption, why is that not being adhered to

JD adoption is accepted as part of Barada Barna culture; the view at the last meeting was it needs to be a wider claim group decision or most people. In GB case I personally think it’s a different story; he’s well known and his particular case could probably be decided here.

LB what I’m saying is I’m willing to recognise FB but I’m not willing to yet consider below that. I have no problem with direct descendants off Kitchener brown. That is what my elders have told me. Everyone recognises your father as being part of the Group.

LR so uncle frank was recognised as Barada Barna – are his kids

LB it’s a case by case basis

CB so in Glen’s case, we recognise you as Barada Barna but further adoption we wouldn’t accept that

JD so dealing with Glen’s case, is he Barada Barna by adoption

CB yes

LB yes

SB (Stacey Budby) if your raised as a Barada Barna person you should be recognised

GB (Greg Brown) 2 yes

JD so from your case the view is yes

LB but I want to make clear, I don’t want this to be thought of as everyone who’s adopted is accepted. You are. But anyone else applying needs to be considered on their individual case.

GB to me, your elders (sic) payment, I think we should back date it

LB yes that’s fine

All Directors agree to back date Glens (sic) elders payment

…………..”

1. Les Budby said that Barada Barna people do adopt people into the tribe and Loretta’s late Uncle Frank Brown is a prime example. Les Budby said at the meeting on 20 June the inclusion of Glen Brown, Frank Brown’s son who was adopted was discussed. He said it was agreed if a person is raised as a Barada Barna person they should be recognised as one. He said it was decided to proceed on the adoption issue on a case by case basis.[125] Les Budby accepted that adoption would involve recognition by the whole group.[126]

1. Graham Budby accepted that he answered “yes” to Glen Brown being Barada Barna by adoption.[127] Graham Budby was taken under cross examination to the statement he made on 30 March 2015[128] for the Federal Court native title proceedings where he said as follows;

“People become a member of the Barada Barna group through descent, although place of birth is sometimes considered important in collective recognition by the group as having the right ancestry is also important. Barada Barna people must be recognised as Group members by other Barada Barna people. If it’s found or the general view of the group that a person’s descent lines are incorrect they may cease to be recognised as a Barada Barna person.”

1. Graham Budby agreed with the proposition that being a member of the Barada Barna group is not just a matter of biological descent; it also depends sometimes on the place of birth and collective recognition. He added that it also depended on having the right ancestry.[129]

1. Cecil Brown Junior said in response to the evidence of Loretta Roos that he recalled the meeting on 20 June. He said at that time the Kitchener Line had been recognised as Barada Barna people but, like all members of the group, had to provide proof of their blood relationship to an apical. He said at the meeting Glen Brown, son of Frank Brown and Grandson of Kitchener, attended the meeting and enquired about adoption. He said he had heard rumours that Frank might have been adopted but this was the first time that he had heard from the Kitchener Line that Frank was adopted. He said he only knew Frank as Kitchener Brown’s son. Cecil Brown Junior said the minutes of the meeting reflected the words he said, and that he did not believe this was a decision for the directors as it could open the floodgates for adoption if permitted.[130]

1. Cecil Brown Junior said the minutes reflect that Frank Brown was recognised and that is correct, however recognition was subject to the Kitchener Line providing proof of their apical connection.[131] He accepted that at the time of the meeting he did not say anything about that being contingent or provisional on Glen Brown proving a bloodline connection to an apical ancestor.[132]

1. Greg Brown accepted that at the meeting on 20 June 2015 when it was proposed that Glen Brown be accepted as Barada Barna by adoption he agreed. He went on to say the directors could not make that decision because it had to go to a collective group, however he accepted he did not say anything about having to prove bloodline at the meeting.[133]

1. Jarrod Brown said the Barada Barna people do not recognise kinship or adoption but he was aware that other groups recognise adoption.[134]

Initial Employment September 2015

1. Loretta Roos said that on 14 September 2015 Graham Budby emailed her cousin Carmel Dargan asking whether she knew three young people who were looking for cultural heritage work. Ms Roos said this was followed by email correspondence between Graham Budby and Carmel Dargan resulting in Loretta Roos, her son Andrew Roos and Ms Bree Dargan being put forward as possible candidates. Ms Roos annexed to her statement emails between Carmel Dargan and Graham Budby.[135]

1. The initial email from Mr Budby on 14 September 2015 read as follows;

“Hi Carmel

Just wondering if would have 3 young people with drivers (sic) licenses that are looking for CH work at moment?

Can you please get back to me as soon as possible with names and phone numbers. (sic)

Kind regards,
Graham Budby
Manager Woora Consulting”

1. A subsequent email from Mr Budby to Ms Dargan included the following;

“Hi Carmel

…………….

The work will be walking seismic lines and removing artefacts off the lines. It will be 3 weeks work with the possibly more work after that as I have arrow seismic work starting after this work is finished.

Kind regards...”

1. Some further emails dealt with an issue concerning the requirement for a provisional drivers licence, and on 16 September 2015 Ms Dargan sent the following email to Mr Budby;

“Hi Graham

The family members who are recommended for the available work.

Loretta Roos (phone number and address redacted)

Andrew Roos (phone number and address redacted)

Bree Dargan (phone number and address redacted)

I have given only the details about the work that you told me via our phone contact.

Thankyou kindly Graham for the opportunity given to our family members.

Will you be contacting them today or tomorrow as I will send them a text to notify them about you call?
Thank you

In Culture & Integrity

Carmel M Dargan”

1. All three were subsequently appointed.

1. Bree Dargan said that around mid-2015 Aunty Carmel (Carmel Dargan) told her BBAC was looking to hire people to work as cultural heritage officers.[136] She said after submitting her resume she found out from Carmel Dargan that she got the job.[137]

1. Bree Dargan said after finding out that she got the job she spoke with Graham Budby the Manager of Woora Consulting, who told her about the travel arrangements for getting to the camp where she would be based, and about getting appropriate medical clearances.[138]

1. Carmel Dargan said the three Applicants got their roles through Graham Budby emailing her to ask could she put forward three family members to work on funding and cultural heritage. Carmel Dargan said Graham Budby never stated anything about the persons needing to be Barada Barna.[139]

1. Loretta Roos said after a time her employment was transferred from Woora to Windbrake. Ms Roos annexed to her statement a copy of her employment contract with Windbrake.[140] The Windbrake employment contract included the following position description concerning cultural heritage work:

“Position description duties – Cultural Heritage work

Position title: Field Officer

Reports to: the designated cultural heritage coordinator

Key responsibilities position summary: A representative of the Barada Barna People employed to conduct field surveys and inspections during Surface Disturbance activities to assess these areas for items of Aboriginal Cultural Heritage significance. The cultural heritage field officer should be recognised by their peers as a person with knowledge and responsibility to make decisions regarding the proper identification and management of their Aboriginal Cultural Heritage. It will also be the responsibility of the Cultural Heritage Field Officer to:

(a)   Work in designated areas under direction from the Cultural Heritage Coordinator;

(b)   Identify and record discovery of Cultural Heritage Finds;

(c)   Conduct any salvage and relocation of nominated Cultural Heritage Finds; and

(d)   Preparation in the morning of Eskys for lunches and including packing of the vehicles in the morning and unpacking of the vehicles upon return at the accommodation site.”

1. Loretta Roos annexed to her statement an ASIC historical extract for Winnaa Pty Ltd (Winnaa)[141] showing that Winnaa was formerly Windbrake but changed its name to Winnaa on 22 April 2016. Ms Roos provided another ASIC current extract dated 15 March 2017 showing that Barada Barna Ltd is a 100% shareholder of Winnaa.[142] Ms Roos said that the transfers from Woora to Windbrake to Winnaa were automatic and this was because the companies were owned and controlled by Barada Barna Ltd.[143]

1. Graham Budby said in or around August 2015 Woora required CHOs. He said to provide the opportunity for all Barada Barna family lines to be involved in working on Country, he shared the opportunity to undertake cultural heritage work between the different family groups.[144]

1. Graham Budby gave evidence that at the time of sending the emails referred to above he was aware that Kitchener Brown had been recognised as a Barada Barna person although his descendants had been asked to provide proof of their eligibility in the form of evidence that they had a blood relationship to an apical ancestor.[145]

1. Graham Budby said the Kitchener Line had not previously been asked to undertake cultural heritage work and it was a gesture of goodwill that he extended the offer of employment to the Kitchener Line via their family spokesperson Carmel (Dargan). He said he did not have any discussions with the Applicants about their connection to a Barada Barna apical ancestor.[146]

1. Graham Budby said he did not specifically recall saying to Carmel (Dargan) or the Applicants that it was a requirement to be Barada Barna to do cultural heritage work although, around the time the Applicants were recruited, he recalled saying to the Applicants and/or Carmel (Dargan) something along the lines of “You’ll be doing work on Barada Barna Country.” He said this statement was intended to reinforce the requirement that you must be Barada Barna to do cultural heritage work because it is a given that you must be Barada Barna to walk on Country and work on their Country. He said it is an unspoken rule for Aboriginal people that you do not walk on another man’s country without permission, and this comes back to their connection to Country.[147]

Inherent requirements of Cultural Heritage Field Officer Role

1. Loretta Roos said she was in the position of Cultural Heritage Field Officer (CHO) from around September or October 2015 until August 2016 and that time was spent learning about Barada Barna Heritage. Loretta Roos said this was so she could identify cultural heritage and artefacts. Loretta Roos said that through the knowledge she developed whilst she was in the position and due to her status as one of the elders in the group, Les Budby trained her up as a team leader. She said she learned about all elements of the job including learning about all the artefacts, tools, identifying fire places and scar trees to preserve.[148]

1. Loretta Roos said that when she commenced working for Woora nothing was said to her about any ‘inherent requirements’ of the position, and this was the same for her employment with the other companies.[149]

1. Andrew Roos said that as a CHO he would go through mining leases and survey the land for significant Indigenous artefacts to be salvaged. He said when his mother and he started they were trained while on the job with the other workers. He said after about two months or even less, his mother and he were told that they had picked everything up and they worked independently.[150]

1. Andrew Roos said on a typical day they would have a group meeting where they would be notified of the area they were to investigate. He said they would then split into one or two groups and then they would walk the area, looking for artefacts like axe heads and scrapers made from rocks. He said besides that they would look at the trees as well to see if there were any scarred trees. He said they would look at the land to look for old campsites and campfires, pretty much anything that was significant and showed that people used the area. Andrew Roos said if they found enough artefacts and signs of occupation, it would be up to the team leaders to talk to the miners and negotiate with them about what to do.[151]

1. Andrew Roos also said when he was hired no one said anything to him about there being any ‘inherent requirements’ associated with the position. He said no one told him that he had to be a Barada Barna person to get the job.[152]

1. Bree Dargan said at the time of starting work she received a letter and a copy of the Woora Consulting General Policies and Procedures from Woora Consulting dated 21 September 2015.[153] She said she did some inductions in Mackay and at some of the mines where they would be working, and then in the following week she started working on site performing the duties of a CHO. Bree Dargan said she learned about Country and traditional ways from the archaeologists they worked with, and from the more experienced CHO’s.

1. Les Budby said it was not correct that only Barada Barna can work on Barada Barna Country. He gave examples of non-Barada Barna people working on Country and being at sacred sites and taking photographs.[154] He accepted that he did not know if a Jangar elder Colin McLennan had been invited onto Country.[155] He said different tribes all worked on each other’s Country and camped together. He said the languages and cultures are similar across the whole BBKY area.[156] He accepted the practice in recent years has been Barada Barna people first and that it about preserving cultural heritage.[157]

1. Les Budby said Greg Brown and Cecil Brown Junior have never done cultural heritage work on Country. He said the claims they make in their statements about cultural heritage restrictions are exaggerated.[158]

1. Carmel Dargan was taken to the statement she provided for the Federal Court where she said the following at paragraph 30 under a heading of Trespass and Permission;

“..They should contact Barada Barna people and elders and make sure it’s okay to come on country and let us know what they are there for to show respect and protocol. That’s what we had to do and that’s what Mum and Dad have taught us...”

1. Carmel Dargan gave evidence that she agreed with the proposition that the appropriate protocol for persons who are not Barada Barna coming onto Barada Barna country is to seek permission of the traditional custodian.[159] Carmel Dargan said she did not have any knowledge of CHO’s working on Barada Barna Country when they were not Barada Barna, but said she had only been told there were non-Barada Barna people before but she did not know them.[160] It was put to Carmel Dargan that it would be the normal or preferred position that CHO’s working on Barada Barna country be Barada Barna people and she agreed saying they would put Barada Barna first.

1. Carmel Dargan went on to say at a meeting in Innisfail Les (Budby) said they would look at partners down the track but Barada Barna people first.

1. Gavin Brown said that as far as he was aware there were no specific inherent requirements for the jobs. He said the only qualification was your bloodline and the BBAC Board’s approval. He said a person applies to the BBAC Board and if the BBAC Board recognises their bloodline then they are eligible.[161]

1. Graham Budby gave evidence that he has been involved in cultural heritage work for over 21 years on Barada Barna Country or Country shared by the Barada Barna people and Darumbal people. He said he worked under the supervision of his father and Barada Barna elder Frank Budby. He said for the last ten years he has been a project manager for cultural heritage work on Country.

1. Graham Budby said he only performs work on Country, and said he would never go onto another man’s country to do cultural heritage work unless he was invited. He said even then he would have his doubts about whether he would do cultural heritage work on another man’s country because of his upbringing and tradition that Barada Barna people only do cultural heritage work on their own Country.[162]

1. Graham Budby said that the BBAC Board considers individuals who have expressed interest in cultural heritage work and authorises the employment of individuals as CHOs. He said this is a requirement understood by all Aboriginal persons because you do not walk or work on another man’s country. He said to be eligible for employment as a CHO; a person must be a Barada Barna person and a member of the BBAC.[163] He accepted there is no document which says this and this was an expression of his opinion.[164] He clarified that this opinion was based on what he had learned from his father.[165]

1. Graham Budby said it was important that CHOs are Barada Barna persons because in their role, they are required to visit sacred sites, identify artefacts and speak with Barada Barna elders about particular sites and artefacts. He said persons who are not Barada Barna could not perform the full range of cultural heritage duties because Barada Barna people regard certain information about sacred sites and other matters as sensitive and this information is not to be shared with non-Barada Barna persons.[166]

1. It was put to Graham Budby that as a practical matter there was nothing that he stated that couldn’t be done by a non-Barada Barna person as it had been done before 2005. He responded that was only because they had been invited on.[167] He went on to say a person invited on could do some things but not all things. He said they could not be taken to sacred sites. He said that is what happened prior to 2005.[168]

1. It was put to Graham Budby that a CHO’s role as at 11 August 2016 involved identifying stone artefacts, axe heads, grindstones and scar trees and artefacts that would be photographed and tagged using GPS and he agreed. He agreed that the Barada Barna people would need to tell mining companies which were important.[169]

1. It was put to Graham Budby and he accepted that a cultural heritage worker could approach someone higher in the hierarchy such as a team leader for assistance in understanding what an important artefact was.[170] He agreed Les Budby would be such a person, however he said for cultural heritage purposes Barada Barna persons have to do the work. He agreed hypothetically a person could be instructed to do the work if they knew what they were looking for.[171] Graham Budby agreed that it was not really a matter of culture but of experience and CHOs spot things.[172]

1. Graham Budby agreed that some sites were sacred to Barada Barna women and some to Barada Barna men and the same applied to ceremonies. He agreed this involved handing down culture from elders to younger generations. It was put to Graham Budby that was not something that CHOs would be doing. He responded to the effect that experienced cultural heritage workers such as team leaders will tell other CHOs things like that. He agreed a male CHO would not tell a female CHO why a particular site is a male sacred site and would only say to not enter that area.[173]

1. Graham Budby agreed his statement did not say that he told the Applicants (concerning their employment) that they needed to be Barada Barna. He responded that to do cultural heritage work on Barada Barna Country and be employed by their Barada Barna company they would have to be a Barada Barna. He said to do work on traditional owner Country you must be a traditional owner. It was put to Graham Budby that prior to 2005 non Barada Barna people were doing the work and he responded that they were invited on.[174]

1. I granted an application for Graham Budby to be recalled to give evidence regarding a number of documents variously described as exploration agreements that had been filed as attachments to the statement of Greg Brown. He gave evidence that he worked as the project manager for the BBAC and described a process where proponents (for exploration agreements) contact the legal representative who then went through the proposed agreement. He said he has been doing this work since 2008 or 2009 and more recently with Winnaa.[175]

1. Graham Budby described Winnaa as the service provider for cultural heritage of the BBAC.[176] Graham Budby was asked if any of the exploration agreements were in operation as at August 2016 and he said probably Arrow Energy. He was taken to one of the exploration agreements dated 18 August 2017[177], and asked if the definition of a ‘survey party’ was typical of what might be found in an exploration agreement and he agreed with that.[178]

1. Graham Budby was unsure if some of the exploration agreements had expired at the time the Applicants were employed. He accepted the August 2017 exploration agreement was entered into after the termination of the Applicants.[179]

1. Cecil Brown Junior said that CHOs are selected from Barada Barna family groups. He said they only employ Barada Barna people connected by blood to do cultural heritage work because they only employ people of their own culture to work on their Country. He said this was because of an important protocol of Aboriginal people that was taught to him by his elders that they do not go onto another man’s country and walk on their land. He said the Barada Barna people believe they must be invited to go onto another man’s country and he would not go uninvited to go onto another man’s country to perform work on their country.[180]

1. Cecil Brown Junior said knowledge about sacred sites and artefacts on their country is handed down from their elders, and certain information is kept solely for Barada Barna people. He said people who are not Barada Barna do not know where certain sacred places are. He said as an elder he would not share knowledge of certain sacred sites with people who were not Barada Barna.[181] He said for these reasons it is Barada Barna lore that only Barada Barna people should be employed as CHOs for work on Barada Barna Country.[182]

1. Greg Brown said Winnaa engaged CHOs to perform cultural heritage work and the work is essential to preserve their culture including sacred sites and artefacts. He said the work can only be performed by Barada Barna people, and “Our Country is our Country.” Greg Brown said the requirement is consistent with and supports the principle objectives of the BBAC as set out in clause 3.2(d) to (g) of the BBAC Rule Book.[183]

1. Greg Brown said that he knew this because his father and elders have told and shown him, the sacred sites, ancient artefacts and cave paintings on their Country. He said to preserve these sites and for reasons of privacy, knowledge of these sites including their location is restricted to Barada Barna people.[184] He said mining companies have asked the BBAC to undertake cultural heritage work in Blackwater and the Hunter Valley which are outside their Country and the BBAC has declined those requests because they respect other people’s country and it is not appropriate for them to perform work on another man’s land.[185]

1. Greg Brown said for these reasons Winnaa and the BBAC only want to engage Barada Barna persons. He said to the best of his knowledge they have not engaged any persons as CHOs unless they have been recognised as Barada Barna. He said in the case of the Applicants they were recognised as Barada Barna but were still required to prove their bloodline connection to an apical ancestor and were given some time to prove this.[186]

1. Greg Brown was asked about what personal involvement he had in the process of recruitment and his evidence was to the effect that the directors have a meeting and are asked if they have any people that would like to put their hand up for a CHO position. He said they make sure that they are Barada Barna people and have proof of apical and bloodline. When asked if he personally reviewed the information he said one of the directors is related to the person.[187]

1. Luarna Mitchell said she worked as a cultural heritage officer from around 23 August 2016 to around July 2017 when she resigned. She said she had been the acting project manager for cultural heritage work for two weeks when Graham Budby was on holidays.

1. I am also of the view that the decision in Walsh v St Vincent de Paul is distinguishable. The activities of the lay chapter president considered in that matter could not be equated with the activities of a parish priest in regard to matters spiritual or doctrinal in nature. Nor could they be compared to an example referred to in Walsh of a parish priest insisting that lay parishioners selected to assist in communion service be Catholic.[368] If a comparison between that matter and this matter is to be made, it is on those kinds of matters that some parallel might be drawn.

1. I accept that the evidence of Barada Barna cultural customs and traditions overwhelmingly demonstrated the existence of accepted and understood Barada Barna lore that the nature of the role of a CHO meant that it was accepted and understood amongst the Barada Barna people, even without it being expressly said or written, that an inherent requirement of the position was to be Barada Barna. It was also clear from the evidence the roles were initially offered to the three Applicants because it was believed at the relevant time they were recognised as being Barada Barna.

1. In conclusion it was an inherent requirement of the particular position held by the three Applicants to be Barada Barna.

Genuine Belief

1. The picture that emerges from the evidence is that there had been an acceptance for many years that Kitchener Brown was Barada Barna but that with the movement toward native title and the establishment of the BBAC, a lack of evidence about which apical Kitchener Brown’s Line was connected to brought the issue under closer scrutiny.

1. It was noted that although the Respondent was the employer it appears that the decision to dismiss was taken by the BBAC Board which was then ‘rubber stamped’ by the Respondent in the sense referred to by his Honour Justice Evatt in Voigtsberger v Council of the Shire of Pine Rivers (No.2).[369]

1. It is necessary to look at the reasons of each individual to identify the substantial and operative reason for the decision. It was submitted for Carmel Dargan that if it is not possible to identify a substantial and operative reason being that the dismissal was because of the inherent requirements of the position, then the Respondent must fail because they have not discharged their burden to prove that was the reason.[370]

1. It was put against the Respondent that its case had never been that the inherent requirement was a requirement of evidence or proof of being Barada Barna (my emphasis), and to say so in closing submissions is not consistent with the evidence of the witnesses. It was submitted that on Graham Budby’s evidence, he knew when he employed the three Applicants that they still had to prove their bloodline connection.

1. Mr Dwyer submitted the genuine belief could be attended by doubt, but it was still a belief as at 11 August 2016. He likened the circumstances to Shizas and submitted the Assistant Commissioner of Police in that matter would have been attended by doubt (as to capacity of the person to perform the inherent requirements of the role given a medical condition) but made the decision the person could not perform the role because of the inherent requirements.

1. Mr Dwyer submitted this is not a matter that is capable of an absolute belief because of the nature of the issue. He said the best that could be done in the circumstances was to invite an opportunity to provide proof, but a decision had to be made going forward.[371]

1. It was submitted for Loretta and Andrew Roos that the words “genuine belief” or “honest belief” are not used in s.351(2)(b), and they derive from the decision in Shizas. It was also submitted that given the consent determination and the other evidence, the inference that the decision was not taken because of the inherent requirements was reasonably open.[372]

1. Submissions for Loretta and Andrew Roos referred to a number of authorities dealing with the expressions genuine, honest and belief to make the case that consideration in such matters of whether the belief was reasonable is inevitable to ensure fanciful and absurd beliefs do not form the foundation of a defence.[373]

1. Submissions for Loretta and Andrew Roos put that the understanding of the expert evidence as displayed by witnesses for the Respondent was unconvincing and not credible regarding the anthropological and genealogical reports because the reports show the Applicants are Barada Barna. It is argued this is a key distinction between this matter and Shizas as the Assistant Commissioner in that matter was a convincing witness having considered expert information, whereas witnesses for the Respondent were unconvincing.[374]

1. It was submitted for Loretta and Andrew Roos that at best the evidence may support that only four of the directors held a genuine or honest belief about the matter, being Greg Brown, Jarrod Brown, Graham Budby and Cecil Brown Junior, however it was put that on the evidence of Cecil Brown Junior that finding is not open.

2. The manner in which the suspension and subsequent terminations occurred was hamfisted. There was no notice of the issue on the Board meeting agenda and some Board members were aware it would be raised whilst others were caught by surprise. The motion appears to have been put and voted on without a considered discussion or a debate despite the complexity of the issue. It also seems from the evidence the Board was advised after the meeting it did not have the power to suspend the Kitchener line despite purporting at the time to do so.

1. On the basis of evidence summarised above, I have been satisfied on the balance of probability that at the time the decision was taken on 11 August 2016, the views of each of Greg Brown, Jarrod Brown and Graham Budby had crystallised to a point that they each held a genuine or honest belief that the Applicants were not Barada Barna at the time. Whilst the question is finely balanced given even these three witnesses talked in terms of doubt, suspicion and or lack of proof, their evidence was sufficiently clear to weigh in favour of having arrived at the required state of mind. On the other hand it was clear Luarna Mitchell was not of such a belief at the time of the meeting.

1. I have been satisfied from the evidence of both Les Budby and Gavin Brown that neither man held a genuine or honest belief that Kitchener Brown was not Barada Barna when they voted at the meeting. I have accepted the evidence of both of those witnesses concerning the respective reasons as to why they voted to suspend the Kitchener line at the meeting despite not holding that belief. Gavin Brown was not required for cross examination. I am inclined to accept his evidence regarding his reason for voting for the motion, which was in short that Greg Brown told him to, and that his state of mind at the meeting was that he did not genuinely or honestly believe that Kitchen Brown was not Barada Barna.

1. I also accept the detailed evidence that Les Budby gave that led him to vote for the motion despite his belief at the time that Kitchener Brown was Barada Barna.

1. That leaves Cecil Brown Junior. His oral evidence contradicted his earlier written evidence and in my view his oral evidence, when tested on his own beliefs on the matter, revealed that at the relevant time he believed Kitchener Brown was Barada Barna but it was the failure to produce evidence of that matter that caused him to vote in favour of the motion, not as has been put for the Respondent.

1. Near the conclusion of his evidence Cecil Brown Junior appears to accept that at the time of the dismissal the Board still believed the descendants of Kitchener Brown were Barada Barna, but they needed more proof. He confirmed this when asked again about this by Counsel for Carmel Dargan. However in the course of re-examination he then appeared to contradict his earlier evidence by saying that in the absence of proof they believed that he was not Barada Barna and that he may have been a community brother but he was not a Barada Barna person.[375]

1. It needs to be remembered that the memberships of the Kitchener line were suspended (pending the provision of evidence) suggesting the matter had not been finally determined. The employment of the Applicants was then terminated. The suspension, and the evidence more generally points to suspicion and doubt about the standing of the Applicants, and not a positive genuine belief that they did not meet the inherent requirements of the position.

1. I cannot be satisfied that Cecil Brown Junior held a genuine or honest belief that Kitchener Brown was not a Barada Barna person at the time he voted. In Cecil Brown Junior’s case, I am satisfied he voted for the resolution because Carmel Dargan had been unable to provide proof, not because he believed that the Applicants were not Barada Barna.

1. In closing submissions Mr Watson submitted one possibility for Cecil Brown Junior’s change in evidence may have been on the basis of the inconsistency between the evidence before the Federal Court in 2015, and the evidence in this matter, and that Cecil Brown Junior dealt with that by saying he had a belief on 11 August 2016 (that Kitchener Brown was Barada Barna) but the belief had to be proven.[376] His doubts and or suspicions about the matter did not rise to a positive genuine or honest belief.

1. I am not satisfied that a state of doubt, and seeking further proof, accords with the requirement to have reached a genuine belief. It falls short of the state of belief required for the Respondent to meet the burden of proving the exception in s.351(2)(b) applies. The decision makers needed to have arrived at a positive belief, even if they were wrong, that the Applicants were not Barada Barna. At best only three of the seven who voted had arrived at such a belief. That is not a majority, and therefore does not represent the collective mind of the decision maker.

1. Regarding Mr Dwyer’s closing submission on the matter of doubt, I have concluded that Shizas is distinguishable on that point because the decision maker in Shizas did decide the question. In this matter for at least four of the seven members of the Board, the matter had not been positively decided. For this reason I have concluded the collective mind of the decision maker concerning the substantial and operative reason for the decision was that the Applicants had not yet proved that they were Barada Barna, and that is different to concluding they were not Barada Barna.

1. I have noted that part of the Applicants’ cases appeared to be that if there were a view that the Kitchener line was, or may not be Barada Barna, why was this was not brought to the attention of Dowsett J during the Federal Court proceedings. However there is evidence in the form of the statement of Cecil Noel Brown dated 30 March 2015 and provided to the Federal Court that Cecil Noel Brown did not believe Kitchener Brown was the son of Lizzie Payne/Hatfield, or the blood brother of Cecil Noel Brown’s father Albert Brown, and was instead a community brother. At the same time the statement of Cecil Noel Brown does not say Kitchener Brown was not Barada Barna, and to the contrary, indicates that he believed he was Barada Barna describing his being returned to “his own Country” when the State made arrangements for his reburial at the request of the Barada Barna people.[377]

Anti-Discrimination Act Defences

1. The Respondent relies in the alternative on defences under s.351(2)(a). Section 104 of the Anti-Discrimination Act 1991 (Qld) (ADA) reads as follows:

104 Welfare measures
A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act.

Example 1—
It is not unlawful for a bus operator to give travel concessions to pensioners or to give priority in seating to people who are pregnant or frail.

Example 2—
It is not unlawful to restrict special accommodation to women who have been victims of domestic violence or to frail, older people.

Example 3—
It is not unlawful to establish a high security patrolled car park exclusively for women that would reduce the likelihood of physical attacks.

1. Section 105 reads as follows:

105 Equal opportunity measures

(1)A person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with this Act.

(2)Subsection (1) applies only until the purpose of equal opportunity has been achieved.

[364]  Submissions for Loretta and Andrew Roos included that:

(a)The decision makers’ state of mind is not relevant to s.351(1)(a) and the actions of the employer under the ADA are largely determined objectively.

(b)The FWC must objectively define the group; and

(c)Objectively identify the common attribute; and

(d)Objectively identify the members of the group; and

(e)Objectively identify the disadvantage faced by the group and the need for the welfare measure; and

(f)Objectively identify the purpose of the measure; and

(g)Objectively assess whether or not the welfare measure is likely to alleviate the disadvantage.[378]

1. I accept the submission for Loretta and Andrew Roos that these are questions of fact and do not provide for subjective interpretation of who are and who are not Barada Barna people. People are either members or they are not. The Commission would need to decide that issue if the defences are to be made good and only then could the Commission determine whether the Respondent actions were lawful. The “attribute” referred to is defined in s.7 of the ADA as including “race” and it was submitted that being a Barada Barna person would fall within this definition.

1. It was submitted for Loretta and Andrew Roos that the Applicants at the time of dismissal were still members of the native title claim group and still members of the BBAC because the statutory procedure for cancelling their membership had not been followed and the purported cancellation was void, and according to the welfare provision therefore the dismissals would be purported to be for the Applicants’ own benefit.

1. Loretta Roos submitted that the common feature of s.104 and 105 is that the act is done with respect to either benefiting or promoting a group of people with an attribute. It was submitted that the act cannot be to benefit the group when the Applicants say they are Barada Barna. The only basis upon which the s.104 defence can be relied is to infer that the Applicants are not Barada Barna.

1. It is submitted the evidence supports a conclusion that the Applicants were Barada Barna, and accordingly they are part of the group for whom the ADA is purported to promote equal opportunity or to benefit. The Respondent is therefore unable to take the benefit of either section.[379]

1. It was submitted for Bree Dargan that the Respondent had not come up to proof on the exceptions. It was said that it needs to be shown that the ADA was designed to benefit the group of people with a particular attribute and there was no evidence of that.[380]

1. It was submitted for Bree Dargan that the Respondent needs to show that the dismissal of the Applicants was a welfare measure or equal opportunity measure. The Respondent must prove that dismissing the individuals benefited the Barada Barna people or promoted equal opportunity for them, and the Respondent has not engaged with that requirement.

1. The Respondent submits that the ADA renders lawful what would otherwise be unlawful in specific circumstances, and are commonly referred to as allowing reverse discrimination. The Respondent conceded it would not be usual to rely on the defences in sections 104 and 105 in a termination of employment. The Respondent could not point to any jurisprudence relying on the section related to termination of employment to assist me.[381]

1. The Respondent submits the policy of only employing Barada Barna falls squarely within s.104 of the ADA and is analogous to the Boys Town[382] policy of only employing females.

1. Having accepted the submission that the actions of the employer under the ADA are largely determined objectively, and would require that the Commission objectively define the group, the Respondent’s defence must fail because it has never sought to objectively define the group as at the time of the decision on 11 August 2016. Its case has largely been run on the basis of the defence under s.351(2)(b), relying on establishing the subjective genuine belief of the decision maker.

1. It is even accepted by the Respondent that the question of whether Kitchener Brown was or was not Barada Barna remains unclear, even with the benefit of all of the expert reports.[383] Even the decision of the formal member vote taken at the 29 April 2017 Special General meeting to remove the Kitchener Brown line from membership of the BBAC, does not settle the question on the basis of evidence. Because the evidence before the Commission does not rise any higher than a possibility that Kitchener Brown was not Barada Barna, the Respondent has been unable to define the group, or membership of the group and therefore cannot rely on either of the defences in s.104 or s.105 of the ADA.

Conclusion

1. On 29 April 2017 the members of the BBAC decided by majority vote to cancel the membership of all descendants of Kitchener Brown. It was my impression in the course of the matter that the descendants of Kitchener Brown were looking for ways to challenge that decision but that is clearly not a matter for this Commission. It is impossible not be moved by the great sense of sadness accompanying the facts of this case that are a by-product of the Stolen Generation of which Kitchener Brown was a victim. It is difficult to even begin to imagine the extent of misery the public policy of that time has inflicted on past and now present generations.

1. Mr Dwyer rightly acknowledged that fact when he submitted the following in closing;

“While I’m on it, the anthropological evidence is far from conclusive. Without divulging – because its stressed in our submissions, but without going into precise details, when you have regard to – and I’d urge you to do so – the precise details in full context of the anthropological reports that you have before you on this issue, there is at best a presumption that Kitchener Brown was the son of an apical. That I think, comes from Hilda Maclean. Then you have people like Lee Sackett who are saying he’s not a member. He’s not a blood relative; he’s not a member.

So there are varying anthropological and genealogical views about the matter and there is – and I say this with some level of sadness and regret for the Kitchener Brown lineage – no clear evidence either way, or in fact no clear evidence, I should say, that he has the appropriate connection to the apical ancestor.”

1. For reasons set out above I have found in favour of the Applicants. In closing submissions the Respondent requested that in the event I find for the Applicants, it be given the opportunity to make further submissions on remedy for reasons including, amongst other things, a submission that it had identified errors in the calculations submitted by the Applicants. The Applicants opposed this course given that they had provided submissions on remedy.

1. I am conscious of the requirement in the Act for the Commission to perform its functions as described in s.577, however have decided to direct the parties to confer with each other in order to seek to minimise any factual disputes between them over alleged errors in calculations, and then I will provide an opportunity to the parties to provide a further brief submission on remedy. I intend to list the matter for a Directions Hearing at 10am Thursday 28 June 2018.

COMMISSIONER

Appearances:

Mr K. Watson of Counsel instructed by Legal Aid Queensland appearing on behalf of Ms L. Roos and Mr A. Roos
Mr D. Fuller of Counsel instructed by Caxton Legal Centre appearing on behalf of Ms B. Dargan

Mr J. Dwyer of Counsel instructed by Franklin Athanasellis Cullen for the Respondent

Hearing details:

2017,
Brisbane:
November 27, 28 and 29

2018,
Brisbane:
April 6

<PR608216>

[1] [2017] FWC 3737.

[2] Transcript PN 214-217.

[3] PR598204.

[4] Transcript PN 53.

[5] Transcript PN 58 and Transcript 6 April 2108 PN 224.

[6] Statement of Loretta Roos, dated 22 September 2017.  This statement annexed to it an earlier witness statement provided for the purposes of the interlocutory hearing regarding representation, and also an affidavit  prepared for an interlocutory application to the Federal Court following an application to inspect the court file in Federal Court matter QUD 380 of 2008 concerning Native Title claims.   Ms Roos also provided a reply statement dated 23 November 2017.   

[7] Exhibit 3, Statement of Andrew Roos dated 22 September 2017; Exhibit 4, Reply Statement of Andrew Roos dated 23 November 2017.

[8] Exhibit 5, Statement of Gavin Brown dated 18 October 2017; Exhibit 6, Reply Statement of Gavin Brown dated 27 November 2017.

[9] Exhibit 7, Statement of Emma Kowal dated 23 November 2017.

[10] Exhibit 8, Statement of Bree Dargan dated 6 September 2017; Exhibit 9, Reply Statement of Bree Dargan dated 22 November 2017; Exhibit 10, Further Reply Statement of Bree Dargan dated 24 November 2017.

[11] Exhibit 18, Statement of Les Budby dated 21 November 2017.

[12] Transcript PN 322

[13] Outline of Submissions of Loretta Roos and Andrew Roos dated 22 September 2017.

[14] Reply Submissions of Loretta Roos and Andrew Roos dated 22 November 2017.

[15] Closing Submissions of Loretta Roos and Andrew Roos dated 24 January 2018

[16] Closing Submissions of Loretta Roos and Andrew Roos in Reply dated 23 March 2018.

[17] Outline of Submissions of Bree Dargan dated 6 September 2017.

[18] Reply Submissions of Bree Dargan dated 22 November 2017.

[19] Closing Submissions of Bree Dargan dated 25 January 2018.

[20] Closing Submissions of Bree Dargan in Reply dated 23 March 2018.

[21] Exhibit 11, Statement of Graham Budby dated 31 October 2017.

[22] Exhibit 13 Statement of Cecil Albert Brown Junior dated 1 November 2017; Exhibit 14, Further Statement of Cecil Albert Brown Junior dated 24 November 2017.

[23] Exhibit 16, Statement of Greg Brown dated 31 October 2017.

[24] Exhibit 17, Statement of Luarna Mitchell dated 31 October 2017.

[25] Exhibit 19, Statement of Jarrod Brown dated 19 October 2017.

[26] Exhibit 1 para 5.

[27] Exhibit 1 para 7.

[28] Exhibit 1 para 8 and 9.

[29] Exhibit 1 para 14.

[30] Exhibit 1 para 15.

[31] Exhibit 1 para 21.

[32] Exhibit 1 para 23.

[33] Exhibit 1 para 32, annexure LR 16.

[34] Exhibit 1 para 38.

[35] Exhibit 1 para 64 – 65.

[36] Exhibit 1 para 66.

[37] Exhibit 1 para 67.

[38] Exhibit 1 annexure 1 para 20-21.

[39] Exhibit 3 para 1.

[40] Exhibit 3 para 2 -5.

[41] Exhibit 3 para 19.

[42] Exhibit 8 para 2 – 6.

[43] Exhibit 8 para 10-12.

[44] Exhibit 8 para 16.

[45] Transcript PN 323.

[46] Transcript PN 332.

[47] Transcript PN 435-437.

[48] Transcript PN 334.

[49] Transcript PN 336-337.

[50] Transcript PN 339.

[51] Transcript PN 342.

[52] Transcript PN 462 – 464.

[53] Transcript PN 469.

[54] Exhibit 18 para 1-5.

[55] Exhibit 18 para 27.

[56] Exhibit 18 para 58-60.

[57] Exhibit 18 para 17.

[58] Exhibit 5 para 10.

[59] Exhibit 5 para 11.

[60] Exhibit 5 para 13.

[61] Exhibit 5 para 15-16.

[62] Exhibit 11 para 1-3.

[63] Exhibit 11 para 15 to 16.

[64] Transcript PN 566-576.

[65] Exhibit 11 para 17.

[66] Transcript PN 878-885.

[67] Exhibit 11 para 11.

[68] Exhibit 11 para 12 – 13.

[69] Exhibit 11 para 14.

[70] Transcript PN 542.

[71] Transcript PN 548.

[72] Transcript PN 549.

[73] Transcript PN 550.

[74] Exhibit 13 para 42.

[75] Exhibit 13 para 43.

[76] Exhibit 13 para 56.

[77] Transcript PN 1427-1443.

[78] Exhibit 13 para 84-85.

[79] Exhibit 13 annexure CAB01 para 7.

[80] Transcript PN 1365-1376.

[81] Transcript PN 1396-1397.

[82] Exhibit 13 para 9-10.

[83] Exhibit 13 para 11.

[84] Exhibit 16 para 1.

[85] Exhibit 16 para 4 annexure GSB03.

[86] Exhibit 16 para 10.

[87] Transcript PN 1822.

[88] Transcript PN 1642-1647.

[89] Exhibit 16 para 7.

[90] Exhibit 16 para 8.

[91] Exhibit 17 para 1-2.

[92] Exhibit 19 para 1-2.

[93] Exhibit 19 para 3.

[94] Exhibit 18 para 9-10.

[95] Exhibit 18 para 12.

[96] Exhibit 18 para 62.

[97] Exhibit 18 para 37-40.

[98] Exhibit 13 para 89-91.

[99] Exhibit 1 para 77-78 annexure LR 27.

[100] Exhibit 16 para 77-79.

[101] Exhibit 13 para 51-53.

[102] Exhibit 13 para 47.

[103] Exhibit 13 para 48-50.

[104] Transcript PN 1405-1420.

[105] Exhibit 16 para 42.

[106] Transcript PN 1836-1844.

[107] Exhibit 16 para 50 – 51.

[108] Transcript PN 366.

[109] Transcript PN 1612-1633.

[110] Exhibit 13 para 66 annexure CAB11.

[111] Exhibit 16 para 55 annexure GSB06.

[112] Exhibit 11 para 25 annexure GSB02.

[113] Exhibit 13 para 14 annexure CAB02.

[114] Exhibit 16 para 57-60.

[115] Exhibit 13 para 54 annexure CAB07.

[116] Exhibit 13 para 54-55.

[117] Exhibit 1 annexure 1 para 27-29.

[118] Exhibit 18 para 42.

[119] Exhibit 1 para 72.

[120] Transcript PN 1783-1793.

[121] Exhibit 16 para 106.

[122] Transcript PN 1810-1811.

[123] Exhibit 13 para 59 annexure CAB08.

[124] Exhibit 1 para 73 annexure LR 26.

[125] Exhibit 18 para 53-57.

[126] Transcript PN 2091-2128.

[127] Transcript PN 764-767.

[128] Exhibit 11 annexure GSB 1.

[129] Transcript PN 781.

[130] Exhibit 13 para 92-95.

[131] Exhibit 13 para 97.

[132] Transcript PN 1323.

[133] Transcript PN 1805 – 1808.

[134] Exhibit 19 para 4.

[135] Exhibit 1 LR 19.

[136] Exhibit 8 para 21.

[137] Exhibit 8 para 23.

[138] Exhibit 8 para 24

[139] Transcript PN 379.

[140] Exhibit 1 annexure LR 8.

[141] Exhibit 1 annexure LR 9.

[142] Exhibit 1 annexure LR 10.

[143] Exhibit 1 para 28.

[144] Exhibit 11 para 26.

[145] Exhibit 11 para 24.

[146] Exhibit 11 para 27.

[147] Exhibit 11 para 29.

[148] Exhibit 1 para 43-44.

[149] Exhibit 1 para 45-46.

[150] Exhibit 3 para 8 – 10.

[151] Exhibit 3 para 11 -12.

[152] Exhibit 3 para 6.

[153] Exhibit 8 para 25-26 annexures BD 1 and BD 2.

[154] Exhibit 18 para 19.

[155] Transcript PN 2022.

[156] Exhibit 18 para 22.

[157] Transcript PN 2033-2035.

[158] Exhibit 18 para 33.

[159] Transcript PN 473.

[160] Transcript PN 474.

[161] Exhibit 5 para 32.

[162] Exhibit 11 para 8.

[163] Exhibit 11 para 9-10.

[164] Transcript PN 536-537.

[165] Transcript PN 889.

[166] Exhibit 11 para 18.

[167] Transcript PN 585-590.

[168] Transcript PN 593-594.

[169] Transcript PN 595-603.

[170] Transcript PN 610-613.

[171] Transcript PN 616-627.

[172] Transcript PN 632-634.

[173] Transcript PN 636-652.

[174] Transcript PN 680-683.

[175] Transcript PN 2510-2517.

[176] Transcript PN 2585.

[177] Exhibit 20.

[178] Transcript PN 2600.

[179] Transcript PN 2638-2645.

[180] Exhibit 13 para 21-23.

[181] Exhibit 13 para 25.

[182] Exhibit 13 para 28.

[183] Exhibit 16 para 16.

[184] Exhibit 16 para 17.

[185] Exhibit 16 para 18.

[186] Exhibit 16 para 20.

[187] Transcript PN 1866-1867.

[188] Exhibit 17 para 9-10.

[189] Exhibit 19 para 6-7.

[190] Exhibit 13 para 61 annexure CAB09.

[191] Exhibit 13 para 62.

[192] Exhibit 16 para 54.

[193] Exhibit 13 para 29-31.

[194] Exhibit 13 para 69.

[195] Transcript PN 1241-1247.

[196] Exhibit 16 para 61-62 annexure GSB08.

[197] Exhibit 13 para 64 annexure CAB10.

[198] Exhibit 16 para 63-64.

[199] Transcript PN 369.

[200] Exhibit 16 para 66-67.

[201] Exhibit 16 para 68.

[202] Exhibit 18 para 44.

[203] Exhibit 13 para 73-78.

[204] Exhibit 16 para 69-72.

[205] Exhibit 18 para 14-15.

[206] Transcript PN 2045-2050.

[207] Transcript PN 391.

[208] Transcript PN 392.

[209] Transcript PN 358.

[210] Exhibit 19 para 12(d).

[211] Transcript PN 1450-1451.

[212] Transcript PN 1849.

[213] Exhibit 18 para 48-50.

[214] Exhibit 15.

[215] Transcript PN 444 – 450.

[216] Transcript PN 969-970.

[217] Transcript PN 1135.

[218] Transcript PN 1089-1094.

[219] Transcript PN 1097-1110.

[220] Transcript PN 1112.

[221] Transcript PN 1158-1160.

[222] Transcript PN 1165.

[223] Exhibit 16 annexure GSB02.

[224] Transcript PN 1655-166.3

[225] Exhibit 1 para 47-48.

[226] Exhibit 5 para 2-3.

[227] Exhibit 5 para 5 – 7.

[228] Exhibit 5 para 17.

[229] Exhibit 5 para 18.

[230] Exhibit 16 para 119.

[231] Exhibit 16 para 120.

[232] Transcript PN 343-344.

[233] Transcript PN 394-399.

[234] Transcript PN 400 -405.

[235] Exhibit 5 para 19-21.

[236] Exhibit 6 para 1-3.

[237] Exhibit 5 para 22 -25.

[238] Exhibit 5 para 36-37.

[239] Exhibit 5 para 41.

[240] Exhibit 5 para 43.

[241] Transcript PN 2157-2163.

[242] Exhibit 18 para 64-69.

[243] Exhibit 18 para 70-72.

[244] Exhibit 11 para 31.

[245] Exhibit 11 para 32 -35.

[246] Exhibit 11 para 36 (a) – (e).

[247] Exhibit 1 annexure LR 55.

[248] Transcript PN 696-720.

[249] Transcript PN 895.

[250] Exhibit 11 para 37-41.

[251] Transcript PN 784-791.

[252] Transcript PN 792-793.

[253] Transcript PN 900.

[254] Transcript PN 797-803.

[255] Transcript PN 804-806

[256] Exhibit 13 para 32-33.

[257] Exhibit 13 para 43 annexure CAB05.

[258] Exhibit 13 para 38.

[259] Exhibit 13 para 34-37.

[260] Transcript PN 979-980.

[261] Transcript PN 985.

[262] Transcript PN 992-994.

[263] Transcript PN 102-109.

[264] Transcript PN 1465.

[265] Exhibit 1 annexure LR 46.

[266] Transcript PN 1013-1022.

[267] Exhibit 13 para 100.

[268] Transcript PN 1259-1261.

[269] Transcript PN 1280.

[270] Transcript PN 1282-1290.

[271] Transcript PN 1292-1294.

[272] Transcript PN 1300-1305.

[273] Transcript PN 1462.

[274] Exhibit 16 para 24-25.

[275] Exhibit 16 para 26-29.

[276] Exhibit 16 para 32.

[277] Exhibit 16 para 121-123.

[278] Exhibit 16 para 33.

[279] Exhibit 16 para 81.

[280] Exhibit 19 para 8-19.

[281] Exhibit 19 para 12-13.

[282] Transcript PN 2485-2486.

[283] Transcript PN 2430-2435.

[284] Transcript PN 2489-2496.

[285] Exhibit 19 para 13.

[286] Transcript PN 2501.

[287] Exhibit 17 para 13.

[288] Exhibit 17 para 15.

[289] Exhibit 17 para 13-17.

[290] Exhibit 17 para 18-25.

[291] Exhibit 1 para 49-50.

[292] Exhibit 1 para 51-53.

[293] Exhibit 3 para 14.

[294] Exhibit 8 para 30-32.

[295] Exhibit 1 para 54.

[296] Exhibit 1 para 55.

[297] Exhibit 1 para 56.

[298] Exhibit 1 annexure LR 20.

[299] Exhibit annexures LR 21 and 22.

[300] Exhibit 1 annexure LR 23.

[301] Exhibit 8 para 34.

[302] Exhibit 8 para 35.

[303] Exhibit 16 para 81-83.

[304] Exhibit 5 para 46-47.

[305] Exhibit 5 para 34 -35.

[306] Exhibit 5 para 50.

[307] Exhibit 16 para 126.

[308] Exhibit 1 annexure LR 22 para 22-26.

[309] Exhibit 1 para 62 attachment LR 24.

[310] Exhibit 3 para 16.

[311] Exhibit 18 para 51-52.

[312] Transcript PN 423.

[313] Transcript PN 424.

[314] Transcript PN 427.

[315] Transcript PN 433.

[316] Exhibit 16 para 88-90.

[317] Exhibit 16 para 91 annexure GSB13.

[318] Exhibit 18 para 81 annexure LB 3.

[319] Transcript PN 2184-2190.

[320] Exhibit 2 para 77 annexure LR 26.

[321] Transcript PN 1702-1711.

[322] Exhibit 1 annexure LR 1 para 72-73.

[323] Exhibit 1 para 90.

[324] Exhibit 5 para 54-61.

[325] Exhibit 13 para 108.

[326] Exhibit 16 para 93-97.

[327] Exhibit 16 para 127.

[328] Shizas v Commissioner of Police [2017] FCA 61.

[329] Ibid at para 128.

[330] Outline of submissions of Bree Dargan 22 November 2017 para IV(A)4.

[331] Closing written submission of Respondent 2 March 2018 para 5 and 6.

[332] Written submissions in reply Bree Dargan 22 November 2017 para 11. 

[333] (1979) 41 FLR 1, 19 (Smithers J).

[334] Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014, [121]; National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, [27], [29], [131; Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239 (Evatt J); General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, 611.

[335] Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 111.  

[336] Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 2.

[337] Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 3.

[338] Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 11.

[339] Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 16.

[340] Transcript 6 April 2018 PN 38-46.

[341] Qantas Airways Limited v Christie (1998) 193 CLR 280.

[342] Qantas Airways Ltd v Christie (1998) 193 CLR 280, 295 [35] (Gaudron J, Brennan CJ, agreeing) 305 [74] (McHugh J), 318 [114] (Gummow J); X v Commonwealth (1999) 200 CLR 177, 187-188 [31], 191 [43] (McHugh J); 208 [102] (Gummow and Hayne JJ, Gleeson CJ agreeing).

[343] Qantas Airways Ltd v Christie (1998) 193 CLR 280, 308 [82] (McHugh J); Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513, 549 (Mansfield J).

[344] Qantas Airways Ltd v Christie (1998) 193 CLR 280, 284 [1] (Brennan CJ); X v Commonwealth (1999) 200 CLR 177, 208 [103] (Gummow and Hayne JJ).

[345] Qantas Airways Ltd v Christie (1998) 193 CLR 280, 284 [1] (Brennan CJ); X v Commonwealth (1999) 200 CLR 177, 189-190 [37] (McHugh J).

[346] Qantas Airways Ltd v Christie (1998) 193 CLR 280, 284 [1] (Brennan CJ).

[347] Qantas Airways Ltd v Christie (1998) 193 CLR 280, 310 [89] (McHugh J).

[348] X v Commonwealth (1999) 200 CLR 177, 208 [103] (McHugh J).

[349] Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 55.

[350] Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 66.

[351] Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 77.

[352] Outline of written submissions Winnaa 2017 para 30.

[353] Written submissions in reply Loretta & Andrew Roos 24 January 2018 para 23.

[354] Written submissions in reply Loretta & Andrew Roos 24 January 2018 para 39-40.

[355] Written submissions in reply Loretta & Andrew Roos 24 January 2018 para 46.

[356] Closing written submissions Winnaa 2 March 2018 para 29.

[357] [2008] QADT 32.

[358] Closing written submissions Bree Dargan 25 January 2018 para 62. 

[359] Transcript 6 April 2018, PN 171-175.

[360] Closing written submissions Bree Dargan 25 January 2018 para 65. 

[361] Closing written submissions Bree Dargan 25 January 2018 para 66. 

[362] Transcript 6 April 2018, PN 124-125.

[363] Closing written submissions Winnaa 2 March 2018 para 32-35.

[364] Closing written submissions Bree Dargan 25 January 2018 para 70. 

[365] Closing written submissions Winnaa 2 March 2018 para19.

[366] Transcript 6 April 2018, PN 221.

[367] Transcript PN 376.

[368] Walsh v St Vincent de Paul Society of Queensland (no.2) [2008] QADT 32 at 75.

[369] Voigtsberger v Council of the Shire of Pine Rivers (No.2) [1981] FCA 207.

[370] Transcript 6 April 2018, PN 187.

[371] Transcript 6 April 2018, PN 288.

[372] Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 37.

[373] Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 118-129.

[374] Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 132-137.

[375] Transcript PN 1462.

[376] Transcript 6 April 2018, PN 77-78.

[377] Exhibit 13 annexure CAB06 para 50.

[378] Written submissions in reply Loretta & Andrew Roos 22 September 2017 para 37-38.

[379] Written submissions in reply Loretta & Andrew Roos 24 January 2018 para 75.

[380] Transcript 6 April 2018, PN 212.

[381] Transcript 6 April 2018, PN 318.

[382] Boys Town [2014] QCAT 247.

[383] Transcript PN 260 - 261.

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