Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FCA 647
•15 June 2021
FEDERAL COURT OF AUSTRALIA
Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647
File number: TAD 19 of 2020 Judgment of: MORTIMER J Date of judgment: 15 June 2021 Catchwords: CONSTITUTIONAL LAW – Constitution s 51(xix) – ratio decidendi of the decision in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 94 ALJR 198 – content of the tripartite test in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 – application of the Mabo (No 2) test – where applicant is a non-citizen who identifies as an Aboriginal Australian Legislation: Constitution, ss 51(xix), 51(xxvi)
Migration Act 1958 (Cth)
Native Title Act 1993 (Cth), s 223
Cases cited: ACCC v Pratt (No 3) [2009] FCA 407; 175 FCR 558
Agius v State of South Australia (No 6) 2018 FCA 358.
Attorney-General (Cth) v Queensland [1990] FCA 358; 25 FCR 125
Australian Broadcasting Corporation and Others v Chau Chak Wing [2019] FCAFC 125; 271 FCR 632
Bodney v Bennell [2008] FCAFC 63; 167 FCR 84
Cherokee Nation v Georgia 30 US 1
Chetcuti v Commonwealth [2020] HCA 42; 95 ALJR 1
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1
Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421
Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1
Commonwealth v Yarmirr [2001] HCA 56; 208 CLR 1
Cunliffe v Commonwealth [1994] HCA 44; 182 CLR 272
De Rose v State of South Australia [2003] FCAFC 286; 133 FCR 325
Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237; 315 FLR 31
Eatock v Bolt [2011] FCA 1103; 197 FCR 261
Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; 37 CLR 36
Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172; 100 NSWLR 155
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Gibbs v Capewell [1995] FCA 25; 54 FCR 503
Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; 379 ALR 248
Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; 87 NSWLR 609
Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1872
Hepples v The Commissioner of Taxation of the Commonwealth of Australia [1992] HCA 3; 173 CLR 492
Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets [2020] FCA 1493
King-Ansell v Police [1979] 2 NZLR 531
Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1422
Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 375 ALR 597
Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422
Ngarluma Aboriginal Corporation v Ramirez [2018] FCA 1900; 364 ALR 94
Obeid v Lockley [2018] NSWCA 71; 98 NSWLR 258
Perara-Cathcart v The Queen [2017] HCA 9; 260 CLR 595
Pochi v MacPhee [1982] HCA 60; 151 CLR 101
Re Immigration and Multicultural Affairs, Minister for; Ex parte Te [2002] HCA 48; 212 CLR 162
Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391
Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; 225 CLR 1
Risk (on behalf of the Larrakia People) v Northern Territory and Others (No NTD 5 of 2006) [2007] FCAFC 46; 240 ALR 75
Risk v Northern Territory of Australia [2006] FCA 404
Sampi v Western Australia [2010] FCAFC 26; 266 ALR 537
Sandy v Yindjibarndi Aboriginal Corporation (No 4) [2018] WASC 124; 126 ACSR 370
Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28
Shaw v Wolf [1998] FCA 389; 83 FCR 113
Tasmania v Victoria [1935] HCA 4; 52 CLR 157
Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113
Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 702; 277 FCR 38
Division: General Division Registry: Tasmania National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 347 Date of last submissions: 3 February 2021 Date of hearing: 11-12 February 2021 Counsel for the Applicant: Mr S J Keim SC with Ms C J Klease Solicitor for the Applicant: Sentry Law Counsel for the Respondent: Mr S Lloyd SC with Mr C Tran Solicitor for the Respondent: Australian Government Solicitor Counsel for the Intervener: Ms R Webb QC with Dr R Cunningham and Mr T Goodwin Solicitor for the Intervener: King & Wood Mallesons ORDERS
TAD 19 of 2020 BETWEEN: KENRICK HENARE HELMBRIGHT
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
MELYTHINA TIAKANA WARRANA (HEART OF COUNTRY) ABORIGINAL CORPORATION
Intervener
ORDER MADE BY:
MORTIMER J
DATE OF ORDER:
15 JUNE 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
2.On or before 4 pm on 29 June 2021 the parties file agreed orders in relation to costs.
3.In the absence of any agreement pursuant to order 2, on or before 4 pm on 6 July 2021 each party have leave to file any written submissions as to costs, limited to three pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
INTRODUCTION
This proceeding raises important questions arising out of the High Court’s decision in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 375 ALR 597 (Love/Thoms) and the majority finding (at [81]) that
Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution.
The applicant, Kenrick Henare Helmbright, seeks a declaration that he is not an alien for the purposes of s 51(xix) of the Constitution. He is a non-citizen. He identifies as an Aboriginal Australian and is of Tasmanian Aboriginal descent. He is recognised as an Aboriginal Australian by melythina tiakana warrana (Heart of Country) Aboriginal Corporation (mtwAC), an organisation that represents descendants of Aboriginal people living in north-eastern Tasmania at the time of first European settlement. The respondent, the Minister, denies that the applicant is an Aboriginal Australian for the purposes of s 51(xix) of the Constitution.
A central issue between the parties is whether Mr Helmbright must prove that he is recognised by a group of Aboriginal or Torres Strait Islander people who, as a “society”, have been continuously “united in and by [their] acknowledgment and observance of a body of law and customs” from sovereignty until the present day so that, under their laws and customs, they can also establish a continuing connection with particular land and waters, thus proving they hold native title: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 at [53]. In short, Mr Helmbright and the intervener, mtwAC, submit that this is not a requirement that flows from the majority reasoning in Love/Thoms. The Minister submits that it is.
The Minister submits that this Court is bound to apply the approach of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (Mabo (No 2)), and as a consequence of the reasoning of Nettle J in Love/Thoms adopting that test, is bound to find a person must be recognised as a member of a society which holds, or is entitled to be recognised as holding, native title. In these reasons I shall refer to this as a native title approach. Mr Helmbright submits that this Court is not bound to apply the Mabo (No 2) test and is free to apply a different test to the question whether he is an Aboriginal Australian and therefore not an alien – specifically, he nominates the tripartite test in Deane J’s reasons in Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1 (the Tasmanian Dam Case) at 273-274. mtwAC, which was granted leave to intervene in the proceeding, agrees that this Court should apply Deane J’s test but submits in the alternative that, if this Court is bound to apply the Mabo (No 2) test because of the reasoning in Love/Thoms, it is able to do so in a more flexible way than the Minister’s position suggests, and without requiring a person such as Mr Helmbright to be recognised as a member of a group that holds, or is proven to be entitled to hold, native title.
Summary of my conclusions
For the reasons that follow, I find that the reasoning of the majority in Love/Thoms, reflected in the ratio decidendi of that decision, does not leave a single judge of this Court free to adopt a different test to the one set out by Brennan J in Mabo (No 2), even though the majority reasoning in Love/Thoms expressly recognises that there may be other available approaches to the determination of whether or not a person such as Mr Helmbright is an Aboriginal Australian.
I find the ratio decidendi of the decision in Love/Thoms does not require a single judge to apply the mutual “recognition” limb of the Mabo (No 2) test by reference to any native title approach. I also conclude the reasoning of Nettle J in Love/Thoms on this matter does not support the Minister’s submission, both as to the interpretation of that reasoning, and whether it “controls” the approach a single judge must take.
I conclude that Brennan J’s approach, although expressed in the context of a decision about common law recognition of native title, is not as narrow as the Minister submits when it is applied to the question of alienage, as Love/Thoms requires. I conclude that, aside from descent, the Mabo (No 2) test looks to “mutual recognition”, that being the term used by Brennan J. The two aspects to mutual recognition are recognition by an individual that she or he is a member of the group concerned, and second, recognition by elders or others enjoying traditional authority within that group that the individual is a member. The recognition in this sense must flow both ways.
In Mr Helmbright’s case, I conclude that on the evidence Mr Helmbright has proven the descent limb, and the self-identification aspect of the mutual recognition limb, but has not proven the second aspect of the mutual recognition limb in Mabo (No 2). He has proven that he is recognised by the community mtwAC represents, but he has not proven the recognition has been given by “elders or others enjoying traditional authority”. This conclusion means he has failed to prove on the balance of probabilities he is not an alien for the purposes of s 51(xix) of the Constitution, and for the purposes of the Migration Act 1958 (Cth). However, I find that if Deane J’s test in the Tasmanian Dam Case was able to be applied to the evidence about Mr Helmbright’s circumstances, that test would be satisfied.
In these reasons, I have used the term “Aboriginal Australian” and “Indigenous” because they are terms used by members of the Court in Love/Thoms. I accept these terms may not be considered appropriate by all, especially by some people who identify as Aboriginal or Torres Strait Islander.
Equally importantly, it should be recognised that neither this proceeding, nor Love/Thoms concerns any single and all-encompassing definition of, or “test” for, who is, and who is not, an Aboriginal or Torres Strait Islander person. Identification and recognition are personal and community issues, although they may need to have a more normative function in some circumstances. How government elects to deal for legal purposes with issues of identification and recognition, may also vary. To hold that a person does not satisfy the test for non-alienage as it is currently expressed, is not to contradict or diminish how they identify and are in fact recognised by their community, as an Aboriginal or Torres Strait Islander person.
PROCEDURAL HISTORY
This proceeding was commenced on 15 May 2020, by way of an originating application and concise statement seeking a declaration that Mr Helmbright is not an alien for the purposes of s 51(xix) of the Constitution.
Timetabling orders were made on 12 October 2020 providing for the filing of written submissions, among other matters, in November and December.
On 12 November 2020, mtwAC filed an interlocutory application seeking leave to intervene in the proceedings. Mr Helmbright supported mtwAC’s application. The Minister opposed it. On 24 December 2020, the Court granted mtwAC leave to intervene: see Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1872.
In advance of the Court’s determination of mtwAC’s interlocutory application, mtwAC had circulated written submissions it proposed to rely on if the Court granted it leave to intervene. On granting mtwAC leave to intervene, the Court ordered it to file and serve the submissions it had already circulated. The Court placed a condition on mtwAC’s intervention that it not be permitted to adduce evidence at trial, given the Minister’s submissions about the time, cost and resources which had by that stage been applied to the agreement of facts between the Minister and Mr Helmbright. There was no restriction on the evidence Mr Helmbright could adduce. Further, the Court also expressly allowed for a further application by mtwAC to adduce evidence at trial:
The trial has not yet occurred. No evidence has been adduced, although the statement of agreed facts has been filed, as have affidavits of the applicant, his mother and his grandmother. No other evidence is foreshadowed. It is presently unclear whether the three affidavits filed by the applicant will be read at trial, given the existence of the statement of agreed facts. Since this case has some novel aspects, it is not appropriate to pre-empt what the parties (including mtwAC) might reasonably wish to do at trial, once their arguments are more refined and have been reflected on further, as might usually occur the closer the trial approaches. The present orders do not make provision for any further evidence, however they also do not preclude an application to adduce further evidence. The Court would expect any applying party to have given reasonable and appropriate notice of such an application. The Court would then consider any such application, taking into account any contended prejudice or unfairness. The present point is that although mtwAC’s intervention is conditioned by a ruling that it cannot adduce any further evidence, if there are factual matters which it (or any other party) subsequently contends are critical to the resolution of the issues before the Court, and are absent from the statement of agreed facts and the affidavit evidence (if read at trial), then the Court will hear its argument on that matter, in the usual course. It would not be appropriate for the Court to deprive itself of the possibility of further evidence, if its admission proves fair, necessary and appropriate.
On 19 January 2021, the Court made orders granting leave to the Minister to file submissions in response to mtwAC’s submissions and to Mr Helmbright and mtwAC to file submissions in reply. The Court now has before it six sets of written submissions:
(a)Mr Helmbright’s submissions filed on 20 November 2020;
(b)the Minister’s submissions filed on 4 December 2020;
(c)Mr Helmbright’s submissions in reply filed on 18 December 2020;
(d)mtwAC’s submissions filed on 24 December 2020;
(e)the Minister’s submissions filed on 21 January 2021 responding to mtwAC’s submissions; and
(f)mtwAC’s submissions in reply filed on 3 February 2021.
The parties provided a statement of agreed facts filed on 5 November 2020. In addition, Mr Helmbright read and relied on his own affidavit dated 13 November 2020; an affidavit of his mother, Mrs Denise Mary Ferris, dated 12 November 2020; and an affidavit of his grandmother, Mrs Hera Makare Ferris, dated 18 November 2020. mtwAC did not seek leave to adduce any further evidence.
The final hearing was delayed, and was held by Microsoft Teams on 11-12 February 2021. Mr Helmbright was briefly cross-examined. Otherwise, and subject to some minor objections which were mostly dealt with by agreement, the affidavit and other evidence was not directly challenged, although submissions were made about whether various aspects of the affidavit evidence should be accepted.
FACTUAL FINDINGS
The recitals to the agreed facts state (at C):
The documents annexed to this statement of agreed facts are attached in order to provide background and context for the agreed facts to which they relate, and not every statement within the documents is taken to be agreed by the parties.
Accordingly, where in these reasons I extract and make findings about some of the historical material in the documents annexed to the agreed facts, those findings are for the purposes of ensuring that the facts the parties have agreed not to dispute in the statement of agreed facts itself (see ACCC v Pratt (No 3) [2009] FCA 407; 175 FCR 558 at [83]-[84], Ryan J), are seen in their proper context. In any event, I do not consider that the findings made on the basis of the historical material are of a kind likely to be materially disputed.
Mr Helmbright’s immigration history
Mr Helmbright was born in New Zealand in 1983. He is a citizen of New Zealand.
In 2005, Mr Helmbright moved to Western Australia, where he has lived ever since.
On 15 January 2011, Mr Helmbright was granted a Class TY (subclass 444) Special Category Visa (the 2011 visa). This is what is described in s 32 of the Migration Act as a “special category visa”, and which principally applies to New Zealand citizens, being granted by operation of law when they enter Australia, rather than by some formal application process. The evidence does not explain why this visa was granted to the applicant in 2011, when he had first entered Australia in 2005, but I infer that may have been because 15 January 2011 was a date on which Mr Helmbright re-entered Australia, or because there was some applicable change to the special category visa scheme.
On 9 August 2017, the Minister notified Mr Helmbright that he was considering cancelling Mr Helmbright’s 2011 visa under s 501(2) of the Migration Act.
On 18 June 2018, a delegate of the Minister cancelled Mr Helmbright’s 2011 visa.
On 22 January 2019, the Administrative Appeals Tribunal set aside the cancellation decision and substituted a decision not to cancel Mr Helmbright’s 2011 visa.
On 25 August 2019, Mr Helmbright temporarily left Australia. By reason of his departure, his 2011 visa ceased.
On 31 August 2019, Mr Helmbright returned to Australia and was granted a new Class TY (subclass 444) Special Category Visa (the 2019 visa).
On 5 February 2020, the Minister notified Mr Helmbright that he was considering cancelling the 2019 visa under s 501A(2) of the Migration Act.
At the time of trial, Mr Helmbright continued to hold a Class TY (subclass 444) special category visa. The following fact was agreed by the parties:
By letter dated 3 March 2020, the Respondent withdrew the 2020 Notice for reasons other than the Applicant’s claims of Aboriginality. However, the Respondent indicated that an alternative power of cancellation may be exercised in respect of the Applicant’s 2019 Visa at some time in the future.
It is this continuing cloud of possible cancellation of his 2019 visa which has prompted the applicant, relying on Love/Thoms, to bring forward a claim that if the Minister were to re-consider any visa cancellation, as the Minister has foreshadowed he might, he would not have any power to cancel the 2019 visa, nor to detain and remove Mr Helmbright from Australia. Mr Helmbright contends that is the case because he is not an alien and the Minister’s cancellation powers in the Migration Act (together with the consequential powers of detention and removal) are incapable of extending to him.
Mr Helmbright’s ancestry
Mr Helmbright’s maternal grandmother five generations back was an Aboriginal woman known as Poolrerrener. She was also named in some of the writings about her variously as Bullrub, Bullroe, or Bulra. The Minister agrees this is the case.
Poolrerrener was born in the area of Tebrikunna or Tebrakuna (now known as Cape Portland), located in the north-east of Tasmania. Poolrerrener was born there in or before 1792, and was a member of the Pairebeene clan, which was one of a number of clans that lived in north-eastern Tasmania at the time of first European settlement. With a European man called Samuel Tomlins she had a child named Edward (Ned) Tomlins, who was born in 1813 at Cape Barren Island. Cape Barren Island is located in Bass Strait off the north-east coast of Tasmania, and is part of the Furneaux Group of islands.
In her text entitled “Tasmania Aborigines: A history since 1803”, parts of which are annexed to the agreed facts, the historian Dr Lyndall Ryan explains that about 6,000 years ago, Tasmanian Aboriginal people began to expand their occupation along the east coast and hinterland of Tasmania, and
also occupied new sites to exploit fat-rich foods such as seals, shellfish and mutton-birds and appear to have introduced techniques like stone traps for shallow-water fishing
and
increasing seasonal use of offshore sites like Maatsuyker Island for sealing … Their development of watercraft over the last 2,000 years, in the north-west, south-west and south-east, to exploit seals, would have aided such expansion.
Continuing with Dr Ryan’s descriptions as they related to sealing, she states
They were very strong swimmers and dived to prodigious depths for shellfish like abalone, mussels and crayfish, used their agility to hunt larger sea mammals such as seals and used long ropes made from tough grass to clamber up trees for possums.
Dr Ryan notes that in 1803 at the time of the British invasion, there may have been up to 100 clans in Tasmania, and that 48 have been identified by the physical anthropologist Mr Brian Plomley. I return to Mr Plomley’s work below, which was also in evidence. Dr Ryan also notes that archaeologist Dr Rhys Jones estimates that there were originally 70 to 85 clans in Tasmania. In turn, Dr Jones’ view is that there were a smaller number of “nations”, estimated to have been around nine.
In those parts of her work which are in evidence, Dr Ryan describes in detail the complex cultural and physically challenging conditions under which those clans survived and flourished prior to the arrival of Europeans, including how their living conditions, activities, laws and customs varied across Tasmania. At 32-33 of the extract of her work that is in evidence, she states:
Each clan was associated with a wider political unit, which the colonial ethnographer G.A. Robinson called a nation’, the name preferred by Tasmanian Aborigines today. Jones defines this unit as ‘that agglomeration of [clans] which lived in contiguous regions, spoke the same language or dialect, shared the same cultural traits, usually intermarried, had a similar pattern of seasonal movement, habitually met together for economic and other reasons, the pattern of whose peaceful relations were within the agglomeration and of whose enmities and military adventures were directed outside it’. Its territory consisted of all the land owned by the constituent clans so that movement outside the territory, and of alien clans inside it, was carefully sanctioned. Such movements usually had reciprocal economic advantages to clans concerned, while trespass was usually a challenge to or punishable by war. Its borders ranged from ‘a sharp well-defined line associated with a prominent geographical feature to a broad transition zone often found between two friendly’ nations.
…
each nation had its own distinctive physical, social, cultural and economic characteristics and different ways of conducting their internal and external relations.
One of the nations identified by Dr Ryan is the “North East nation”, in the region the parties agree is the one where the Pairebeene clan was located. Dr Ryan states there may have been at least 10 clans, with other researchers estimating the North East nation may have had a minimum total population of about 400 to 500 people. It is convenient to use the term the “North East nation” in these reasons. Dr Ryan describes part of the hunting activities of these clans:
The coastline of the North East nation and the associated lagoons and estuaries provided abundant seasonal food resources, such as mutton-birds, swans, ducks and seals. From late July to early September the egging season enticed several clans to congregate around these lagoons and estuaries to collect swan and duck eggs. In summer they hunted fur seals and in autumn mutton-birds.
To understand why Edward (Ned) Tomlins migrated to New Zealand, at least a smattering of an understanding about the early European sealing and whaling trades in Tasmania and New Zealand is helpful. There is evidence both in the agreed facts and in the documents annexed to those agreed facts, about those trades. European sealing operations in the islands proximate to the north-east coast of Tasmania commenced around 1798, which was some years before any European settlement in Tasmania. It is an agreed fact that the first European settlement in north-eastern Tasmania was established in 1804 on the Tamar River at Port Dalrymple (then named George Town).
In an article entitled “The sealers of Bass Strait and the Cape Barren Island Community”, Plomley and Ms Kristen Henley describe how European sealers took Aboriginal women as their partners, and how the Furneaux Islands, in particular Cape Barren Island were some of “several places of resort of the Australian sealers”. In their account of the European men and Aboriginal women who lived a life based around sealing at this time, Plomley and Henley describe the applicant’s maternal ancestor Poolrerrener by several names including Bullrub, Bullroe and Bulra and state:
Shortly after her arrival there her son, the half-caste sealer Edward Tomlins, left on a whaling voyage to the western coast of New Holland. She remained among the sealers in the western straits, living first with Dodson and then with Rew. On 17 August 1832, she was delivered up to Robinson by Rew and sent to the Aboriginal Settlement. She died there, probably before September 1835.
The brutal way of life to which women like Poolrerrener were subjected is described by Dr Nigel Prickett in a collection of essays in honour of the archaeologist Professor Atholl Anderson, entitled “Islands of Inquiry: Colonisation, seafaring and the archaeology of maritime landscapes” (ed. Geoffrey Clark, Foss Leach and Sue O’Connor), which is annexed to the agreed facts. In a chapter called “Trans-Tasman stories: Australian Aborigines in New Zealand sealing and shore whaling”, Dr Prickett writes:
Tomlins, Morrison and Harrington came from the mixed-race sealing communities of Bass Strait and Kangaroo Island. Robinson describes how sealers shot Aboriginal men as they sat around their fires, and then abducted the women (e.g. Plomley 1966:966). Or women were traded by Aborigines themselves, from their own tribes or others from which they had been abducted (Ryan 1977:30–31). At first, women were made available for the sealing season only, but as sealers began to stay on throughout the year, so too did their ‘wives’. By 1816, sealers each might have two to five women for sexual and domestic purposes. Robinson refers to them as ‘slaves’ (Plomley 1966:1008). In 1830, Tomlins’ headsman at Hunter Island, the Maori ‘John Witieye’, had two women (Plomley 1966:180). Coastal tribes were devastated, Robinson reporting just three women with 72 men in Tasmania’s northeast, also in 1830 (Plomley 1966:966).
Dr Prickett describes the start of the sealing trade thus:
The first sealing on Bass Strait islands took place in 1798 (Ling 1999:327). Exploitation of subantarctic islands began in 1804 at the Antipodes group (Smith 2002:12). Everywhere, big early catches soon declined. Nonetheless, seal numbers in southern New Zealand were sufficient to maintain an industry into the early 1830s (Smith 2002:12), with gangs dropped off along the coast from vessels out of Sydney, or in the 1820s by boat from Foveaux Strait. As relationships developed with Maori, especially with Maori women, many sealers stayed on to make a new life in New Zealand.
Dr Prickett then describes how the men turned their attention to whaling:
With Australia the source of most New Zealand shore whalers, it is not surprising that one and two generations after the First Fleet sailed into Port Jackson some were of Aboriginal descent. Their fathers were convicts or ex-convicts. Mothers came from the many tribes that lived at or near the Australian coast and were largely dispossessed and dispersed early in the process of colonisation. The best known among them was Thomas Chaseland, whose convict father arrived in New South Wales in 1792 and later settled in the Hawkesbury district near Sydney. Chaseland was sealing at Foveaux Strait from c. 1824 and later whaled at several southern stations. Notable Hawke’s Bay whalers from the mixed-race sealing communities of Bass Strait and Kangaroo Island were George Morrison, Edward Tomlins and Samuel Harrington.
Of Tomlins, and after having described his birth and his parentage in broadly the way I have set out above, Dr Prickett says:
In December 1830, Tomlins was one of five Hunter Island men marooned on the Clarke Island reef [also in the Furneaux Group] when their boat was lost (Figure 3). Two disappeared trying to reach safety in a makeshift craft, the others living for eight days on seal meat and blood before being rescued (Plomley 1966:295–296)
….
It is not known when Ned Tomlins arrived in Hawke’s Bay. Information on his New Zealand career comes largely from ‘An Old Colonist’, thought to be F.W.C. Sturm, writing in the Hawke’s Bay Herald in June 1868: ‘Where all were drunkards, Ned Tomlins was notorious; he was a valuable man, and an able headsman.’ In his ‘Old Wairoa’, Thomas Lambert (1925:368) describes Tomlins as ‘said to be one of the best whalers that ever stepped into a boat’ (apparently after Dunderdale), and recklessly generous, once giving away one of three sperm whales he had taken in exchange for a bucket of water. Lambert (1925:368) says he worked for Captain Mansfield and whaled out of Waikokopu and Kinikini. At Waikokopu, he probably whaled with Morrison, whom he may have known from Portland. Tomlins died there after a successful day’s whaling. More drunk than others who were playing cards, he was turned out of a house, but insisted on trying to get back in. Finally, he was hit by the station owner, a man named Perry, and thrown from the door, later to be found dead outside. Perry himself read the burial service. This happened before Perry died of ‘apoplexy’ on the beach at Mahia in 1853. Tomlins and Hipora Iwikatea of Mohaka had one son, also Edward Tomlins, who had three children, a girl Akenehi, a boy Tamati, and a second girl Hera. Hipora Iwikatea died on November 12 1900, her son Edward predeceasing her on December 15 1892 (Parsons pers comm. 2008).
Dr Prickett observes that:
Tasmanian Aborigines were killed or removed from their land, and women bartered, sold or stolen (Ryan 1977). Maori tribes, on the other hand, remained on their land and in many cases incorporated the newcomers into tribal society and whakapapa, especially when women were from chiefly families, as in the case of Puna (see Anderson 1991:7).
The common theme relevantly emerging from this material is the exploitation of both Aboriginal and Maori women by the men involved in the sealing and whaling trades, and especially in the case of Aboriginal women, their forced removal from their home clans and their country, with their descendants moving on to be absorbed into another Indigenous society, the Maori, in New Zealand.
The connections between Mr Helmbright’s Maori and Aboriginal ancestors
It is appropriate to make some findings about the way the applicant’s family identifies. The purpose of doing so is to demonstrate that the evidence plainly supports the proposition that the applicant’s family, on his maternal side, has long understood there was a connection in their family to the Aboriginal people of Australia, and have in more recent years sought to incorporate their Aboriginal ancestry and cultural heritage into their lives, seeing that Aboriginal identity as part of their family, while (I find) maintaining their identity as Maori.
It was no express part of the Minister’s case that the applicant had somehow manufactured his identification as an Aboriginal person, nor recently invented it in order to take advantage of the Love/Thoms decision. Indeed, the applicant’s own evidence makes it clear he raised his Aboriginality with the Minister’s department in 2017, several years before Love/Thoms was decided: see [20] of his affidavit. The evidence from, and about, the applicant’s family demonstrates that it is his family as a whole, through his maternal side, who have been accepted and welcomed into the Aboriginal community of north-eastern Tasmania, and that this has been a gradual process of discovery, and reinvigoration of connection over several decades. It is a narrative familiar to many Aboriginal and Torres Strait Islander peoples.
The applicant’s grandmother, Mrs H Ferris is the great-great granddaughter of Edward (Ned) Tomlins. She deposed:
Our whanau (family)—the Tomlins family—always knew that we were descended from an Aboriginal from Tasmania called ‘Black’ Ned Tomlins. This was always part of our whakapapa from the time that I can first remember. Whakapapa is the Maori term for the oral history and genealogy of family passed down from generation to generation and is a very important part of Maori culture which continues to be observed to this day.
When I was young I remember my grandfather Tommy Tomlins (before he passed away on 23 April 1946) as well as my uncles and aunties talk about Black Ned, the Aboriginal Australian who came to Hawke’s Bay from Tasmania. My siblings, cousins and I were told that Ned Tomlins married Hipora Iwikatea and had a son Edward (Neri) Tomlins. We were also told that Ned Tomlins was an excellent sealer and whaler and was killed by his best friend at a pub in Mahia.
She further deposes that:
For all of my life it has been well known amongst the people of Pakipaki [where Mrs H Ferris lives] that our family had an Aboriginal connection. I identify as both Maori and Aboriginal.
She describes her family’s sadness at not knowing until the last twenty years or so any further details about Edward (Ned) Tomlins’ background:
I know that among members of the Tomlins family from my generation, we have always discussed Ned Tomlins as a part of our whakapapa. As a proud Maori family, knowing and preserving our whakapapa is very important to us because our identity comes from knowing who we are, and we believe we are who we come from. I know that members of my family from my generation have always shared a sense of sadness and loss that we could not trace our ancestors back beyond Ned Tomlins. We know our Maori ancestors back many, many generations, but do not have the same knowledge for the Tomlins’ family. For many years our whakapapa for our Tomlins family ended with ‘Black Ned’ Tomlins.
Mrs H Ferris then describes how her cousin, who is a professor at Massey University in New Zealand, “worked with a professor from Tasmania and they made the connection with Ned Tomlins”. Once that connection was established, Mrs H Ferris deposes:
After that we had a family reunion in Hawkes Bay, which was held to update our family’s whakapapa. Our family regularly holds reunions to update our whakapapa. At this reunion we were played a video that explained the link between Ned Tomlins and Bulra and showed us the land we came from. I know that some years later members of our family travelled to Tasmania to visit our Tasmanian Aboriginal relatives.
Our family has always been proud of our Maori heritage and also proud of our Aboriginal heritage. Our grandfather Ned being an Aboriginal is and always has been important part of our family’s whakapapa.
The applicant’s mother (Mrs D Ferris) deposed that she has
known since I was young that I was part Aborigine. When I was quite young, definitely under the age of nine years, my mother told me that she was part Aborigine. It came up because I couldn’t understand why my mother and my uncle had hair with tight curls – which is not normal for people of Maori descent. My mother explained to me that it was because we were part Aborigine.
Her evidence was that she never sat the applicant down and told him he was Aboriginal when he was a child, but the applicant’s brother had the same tights curls as her mother, and Mrs D Ferris’ own brother “had such dark skin” so that, if asked why, her family’s response was “[t]hat is the Aboriginal side”. Mrs D Ferris deposed that Mr Helmbright’s youngest son has the same dark skin and tight curls.
The applicant’s knowledge of his Aboriginal ancestry, and his identification as Aboriginal
The physical features of tight curls and dark skin in his family are a matter about which Mr Helmbright himself gave evidence. His evidence is that he was conscious of these physical features in his family from childhood, because his brother had them, and was teased about it. I accept that evidence.
However, he deposed that he does not remember considering his Aboriginal ancestry further before about 2008 or 2009 when he was being held in remand at Hakea Prison in Perth, and had a conversation with his grandmother, whom he calls Nanny Hera, on the phone.
His affidavit evidence continued:
Nanny Hera was aware that I was being held in prison with a lot of Aboriginal men. Nanny Hera told me something to the effect of, ‘Make sure that you tell them that you’re one of them.’ I asked Nanny Hera what she meant and she then went on to tell me that I had an Aboriginal ancestor in my Koro (grandfather), Ned Tomlins.
After Nanny Hera told me that I was Aboriginal, I immediately began identifying as Aboriginal and identified myself as such to other inmates at Hakea Prison and to people in the prison generally. After I was released from remand in 2009, I believe that I continued to identify myself as Aboriginal to other people in the community, but I have no specific recollections or examples of this.
In about 2012, I had another telephone conversation with Nanny Hera where she provided specific details of my Aboriginal ancestry. During that conversation, Nanny Hera told me that there had been a family reunion with some of our Tasmanian Aboriginal family in Tasmania in 2012. I don’t remember if Nanny Hera told me which of my family members had gone to Tasmania, but I know that Nanny Hera was not one of them. She also told me that, a few years before that, there was a family reunion in Hawkes Bay, New Zealand, that was intended to update our family’s whakapapa (the Maori term for our family’s genealogical history and development). Nanny Hera attended that family reunion in New Zealand. Nanny Hera told me that, as a result of both of these family events, our family was able better understand our connection to Tasmania.
During my telephone discussion with Nanny Hera in 2012, she told me that our family was descended from a Tasmanian Aboriginal woman named Bulra who was Ned Tomlins’ mother. She told me that ‘Black Ned’ Tomlins had travelled to New Zealand as a sealer. Nanny Hera told me, earlier this year, that, as a child, she and her siblings knew that ‘Papa Ned’ was an Aboriginal blackfella who arrived on the sealing ships, was known as a good sealer, was particularly dark-skinned and that he was murdered by his best friend. Nanny Hera may have given me these details during our conversation in 2012, but I do not remember.
I know with certainty that, since that telephone call with Nanny Hera in 2012, I have proudly identified myself, both personally and to other people, as Aboriginal and as a Tasmanian Aboriginal (palawa) specifically. I also identify as a descendent of the Pairebeene clanswoman, Bulra (also known as Poolrerrener), from the North-East of Tasmania.
Since at least 2012, but possibly as early as 2008, I have identified myself as Aboriginal and Maori in the community, including with employers, with friends and with my children’s schools. Since at least 2012, when I have had to fill in a form and it has asked whether I identify as Aboriginal or Torres Strait Islander I always tick the ‘yes’ box.
I feel that it is a blessing and a privilege to be both Aboriginal and Maori and belong to two Indigenous cultures and have a deep ancestral connection to two different countries. I am very proud to identify myself as both Aboriginal and Maori.
I’ve told my boys that they are Aboriginal since they were very young. I believe I told them pretty soon after my conversation with Nanny Hera in about 2012. When they were younger, I just told them they were Aboriginal but, as they have grown older, I’ve explained our family’s whakapapa to them, and told them the story of Koro Ned, Bulra’s son, travelling from Australia to Hawkes Bay. It is important to me that my children know and understand their Aboriginal ancestry, as well as their Maori ancestry. I believe that it is important for them to know who they are, and and to do so they must know who and where they come from—that is extremely important to me both as both a Maori man and an Aboriginal man.
When I lived in Margaret River, Western Australia, between about 2012 and 2014 I used to help out with The Warden Centre, which was run by the Wardandi people near Margaret River. I used to help out with the Centre’s working bees. I remember telling an Aunty at the Centre of my Aboriginal ancestry and she was very excited, but also very sad because she knew about the history of Tasmanian Aboriginals. I remember her saying to me that I was the darkest Tasmanian Aboriginal she’d ever met because most have a fairer skin tone.
Mr Helmbright’s evidence is that, during a period of imprisonment in 2015-2016, he was offered a place on a rehabilitation program that only Aboriginal prisoners were eligible for, but he decided not to participate because his parole had already been approved and participating in the program would have required him to serve his full sentence of imprisonment.
After Mr Helmbright received the notification of an intention to cancel his 2011 visa in 2017, he wrote two letters to the (then) Department of Immigration and Border Protection, and provided several letters of support, referring to his history of identifying as an Aboriginal Australian. As I have noted, this occurred well before the High Court’s decision in Love/Thoms. In his first letter, dated 6 September 2017, Mr Helmbright wrote:
I needed to bring the following to your attention;
1. By descent I am an Aboriginal Australian.
2.This has already been recognized by the Department of Corrective Services as well as Department of Human Services, Australia.
My name is Kenrick Helmbright, son of Denise Ferris, daughter of Hera Ferris, daughter of Jessie, daughter of Tom Tomlins, son of Edward (Ned) Tomlins, son of Samuel Tomlins and mother of Bulra (SA aboriginality, Kangaroo Island residence…). This has been known and respected as of 2012 following a family reunion held in Hawkes Bay, New Zealand.
Clearly, the statement about Poolrerrener’s ancestral country was not correct, but nothing turns on this. It appears that, around this time, the Department informed Mr Helmbright that he was not an Australian citizen. Mr Helmbright addressed this in his second letter, dated 5 January 2018:
Let me firstly and most importantly speak to your confidence in telling me I am not a citizen.
Whilst I understand your available “departmental systems” must struggle to find records of what was essentially stolen generations by way of governmental genocide carried out on the First Australian Palawa people in the 1830s – my ancestors! I match your confidence in knowing who I am. I am Kenrick Helmbright and my parents and lineage is as previously provided to you. I am a direct descendant of the Palawa people. This is my country. Mannalargenna is my uncle. Bullrer(Louisa) is my aunt. Black Ned(Edward Tomlins) is my Grandfather. The fate of all my known ancestors was in the hands of the Wybaleena establishment at this time; all, except my Grandfather who was a skilled whaler & sealer who departed for Nueve Zealandia for better prospects. I as one of his many descendants claim birthright to this land and deny your insinuation that an aboriginal is not a citizen of this land now called Australia. There is deep pain caused by denying someone of their rightful home. I would hope that displacement of the original inhabitants of this land was of importance to any government department in existence today. Legal advice I have sought has assisted in clarifying the three pronged approach in law that provides definition to aboriginality;
l. I have provided my line of descent.
2. I have identified as an Aboriginal and have done so for over 5 years now.
3.I am accepted as Aboriginal by the community I live as well as the community I descend from.
As previously mentioned my aboriginality has already been accepted over the years by the Department of Justice and the Department of Human Services.
To further support this claim I herewith provide my Grandfather Tairua Hapimana as an authority on this case (Form 956 attached herewith). Papa has been as you might call “formerly recognized” as Palawa Aboriginal and has offered his details as a point of contact to support my genuine claim. The Migration Act of 1958 pertains only to non-citizens. I am at the very least in the process of acquiring my “citizenship” as an Aboriginal. Bear in mind that this process currently has no quantifiable process to it. If you are aware of a form to prove citizenship by aboriginality please feel free to forward to me so we can stop wasting your time and mine.
The letters of support included the following statements:
(a)From his sister-in-law, dated 6 January 2018:
Kenrick has identified himself to me as an Aboriginal over these years.
(b)From his mother-in-law, dated 7 January 2018:
I have known Kenrick for the past 24 years, and am aware that he has proudly identified himself to myself and others as being of Tasmanian/Palawa Aboriginal descent, descending from his maternal grandmother’s line.
(c)From the principal of a school his children attended, dated 7 January 2018:
Kenrick has identified himself and his two enrolled children as Aboriginal since arriving at the school 6 years ago. The school has identified Kenrick’s two children as Aboriginal in the Federal and State Censuses each year.
(d)From a parent with children attending the same school as Mr Helmbright’s children, dated 7 January 2018:
Kenrick has identified himself to me as an Aboriginal over these years.
…
Kenrick’s deportation from Australia would be against our respect of the Indigenous communities.
We may be spread wide across the lands of the earth, but we should always be welcomed back to our homeland.
(e)From the parent of a friend of one of Mr Helmbright’s sons, dated 8 January 2018:
Kenrick has … mentioned that he has Indigenous roots through his grandmother coming from Tasmania, does this not qualify him to stay in the country?
Mr Helmbright’s evidence is that, after he was released from immigration detention, he attended and volunteered at “a community organisation … that runs a Stronger Fathers program for Aboriginal fathers”.
Mr Helmbright also gave the following evidence about his children and nephews:
My daughter, [name redacted], was born with the assistance of the Aboriginal midwifery group Moorditj Boodjarri Mia at St John of God Hospital. Our family has also attended the Moorditj Koort Aboriginal Corporation Health and Wellness Centre for medical care.
My sons identify as Aboriginal. I have seen and heard them tell other people that they are Aboriginal. My younger son, [name redacted], participates in the Aboriginal cultural learning group at his school—[name redacted]. Only Aboriginal children are eligible to participate in the group. As part of the group, they go on excursions to country, learn about Dreamtime and also learn cultural traditions like traditional dance. [My younger son] recently performed as a dancer at an Aboriginal awards night, which was a very proud moment for me as a father.
My nephew, [name redacted], participates in Aboriginal support programs offered by his high school—[name redacted]. Participation in these programs entitles him to special tutoring and study support, as well as health care services. …
My son, [name redacted], and my nephew, [name redacted], play basketball for [name redacted], an exclusively Indigenous youth basketball club in the [name redacted] area.
Mr Helmbright was cross-examined about how and when he first identified as Aboriginal, and whether that did not occur until the point when he spoke to his grandmother in 2008 or 2009 from prison. He confirmed that before this point what he knew “was only hearsay” and that it was only after this conversation with his grandmother that he thought of himself as being Aboriginal. He described telling one of his fellow prisoners about that fact:
And what did you tell him?---I told him that – that I just found out that my tipuna was one of his descendants – one of his tipuna that we – we – brothers.
Sorry. You used a word that I was unfamiliar with, tipuna; what does that mean?---Tipuna. That’s – in – in Maori that’s ancestors.
There was some further cross-examination about the second conversation with his grandmother around 2012. I find the applicant was genuinely uncertain about how much he was told during these two conversations about the details of his ancestry. That is understandable. No doubt, given the evidence of his mother and grandmother, these matters may also have been discussed when the applicant was growing up. I find the applicant was nevertheless clear in placing the start of his personal identification as Aboriginal at approximately 2008-2009.
Many of the matters he was thereafter cross-examined about appeared to call into question, or seek to test, the applicant’s identification as Aboriginal and how much he knew about Aboriginal culture and his particular Tasmanian Aboriginal heritage. I consider the applicant answered those questions to the best of his ability and did not seek to exaggerate his knowledge of such matters, nor to conceal the fact that he was still learning about his Tasmanian Aboriginal heritage and thus could not answer everything he was asked about that culture or heritage. Many people with various cultural, ethnic and racial heritages might be in the same position if questioned.
None of that cross-examination affects my view that the applicant genuinely and honestly identifies as an Aboriginal and Maori person, is proud of both his heritages and takes each of them to be a core part of his own identity, which he intends to pass on to his children.
In 2019, when the Tribunal found that Mr Helmbright did not pass the character test, but decided not to exercise the discretion to cancel Mr Helmbright’s visa, one of the considerations that the Tribunal considered weighed in favour of not cancelling Mr Helmbright’s visa was the strength of his ties to “the Australian community”.
At [147]-[148], the Tribunal stated:
The Tribunal finds that the Applicant’s ties to the Australian community are very strong. The Applicant was born in New Zealand and has Maori heritage, however, the Applicant’s evidence is that for the past five years he has primarily identified as an Aboriginal Australian after learning of his family’s ancestry through his maternal line (G10, G11). In his personal statement, the Applicant stated (Exhibit A2, page 42, paragraph [54]):
Even though I was born in New Zealand, I identify as Indigenous Australian as my mother has ancestral connections to the Indigenous people of Tasmania. My grandfather (5 generations back) [name omitted] left Tasmania for New Zealand to escape the massacre of Tasmania’s Indigenous people. My material [sic] family has always recognised its Indigenous ties to Australia and I have applied to become a member of the [name omitted] Aboriginal Corporation. Many of my maternal family members are already members of the Corporation and are recognised as being of Aboriginal descent. Both of my sons identify as Indigenous Australians as well.
The Tribunal has before it the Applicant’s application for membership to the Aboriginal Corporation, as well as a family tree which traces the Australian Aboriginal line of the Applicant’s family (Exhibit A2, page 49 and 50). The Tribunal also has before it a letter from the Aboriginal grand-uncle of the Applicant, unsigned but dated 2 January 2019, which states, “I know he [the Applicant] is a descendant of the [name omitted] people of Tasmania through his mother’s family and that he identifies as Aboriginal” (Exhibit A2, page 58). The tribunal also has before it a “Confirmation of Aboriginality” certificate from the relevant Aboriginal Corporation dated 14 November 2015 certifying that the Applicant’s grand-uncle is a Tasmanian Aboriginal person (Exhibit A2, page 59). As also noted above, the Principal of his children’s former school has stated that the Applicant had identified himself as Aboriginal for approximately six years and that his children had also been identified as Aboriginal in the Federal and State Census each year (G38). Additionally, another parent at the school who wrote a letter of support for the Applicant, stated that she had known the Applicant of four years and that he had “identified himself to me as Aboriginal over these years” (G37). Although the Applicant has not yet been formally recognised as Aboriginal by the relevant Aboriginal Corporation, the Tribunal is of the view that there is sufficient circumstantial evidence to suggest that the Applicant is a person of Australian Aboriginal descent, and that the Tribunal accepts that the Applicant identifies as an Australian Aboriginal person.
(Emphasis added.)
The Tribunal’s finding is not without significance. In a contested situation, and for the purposes of the exercise of powers under the Migration Act, one arm of the executive government of the Commonwealth has formally accepted the applicant as an Australian Aboriginal person. Of course in doing so in 2019, the Tribunal could not have appreciated the potential, additional ramifications of this finding, since Love/Thoms had not been decided.
mtwAC
mtwAC was founded in 2008 by six people who:
(a)each self-identified as having at least one Indigenous ancestor from north-eastern Tasmania at about the time of first European settlement; and
(b)were active within the Indigenous community in Tasmania.
mtwAC was registered by the Office of the Registrar of Indigenous Corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CASTI Act) in the year it was founded.
mtwAC is governed by a board of directors. It also has a “Circle of Elders” which is consulted by the board from time to time. I return to these aspects of its governance in more detail below.
Since 2015, mtwAC has run an annual celebration called Mannalargenna Day. This day commemorates the life of Mannalargenna, a warrior and chief from eastern Tasmania. The agreed facts state that:
Mannalargenna Day is a day that allows his descendants and wider community to learn about, and celebrate, local Aboriginal culture, their connection to country and of significant Aboriginal people in Tasmanian’s history through cultural performances and dances, workshops, food, walks, tours, storytelling and discovery sessions.
mtwAC is a member organisation of the Tasmanian Regional Aboriginal Communities Alliance, an organisation which recognises mtwAC as the entity representing the interests of Indigenous persons from north-eastern Tasmania. It is also recognised by the Tasmanian Office of Aboriginal Affairs as an organisation capable of recognising persons as Aboriginal for the purpose of special government programs.
Any member of mtwAC is eligible to be issued with a certificate of membership and what mtwAC refers to as a “Certificate of Confirmation of Aboriginality”.
Mr Helmbright was admitted as a member of mtwAC by the board on 15 February 2020. He has been issued with a certificate of membership and a Certificate of Confirmation of Aboriginality. Six other members of his family are members of mtwAC.
THE PARTIES’ SUBMISSIONS IN SUMMARY
Mr Helmbright’s submissions
Mr Helmbright submits that, on a proper reading of Love/Thoms, this Court is not bound to apply the Mabo (No 2) test. He submits that the majority did not decide that the only test for non-alienage on the basis of Aboriginality is the test from Mabo (No 2).
Mr Helmbright submits that Bell, Gordon and Edelman JJ explicitly stated it was unnecessary to determine whether the test from Mabo (No 2) is the only test for non-alienage on the basis of Aboriginality (eg at [80], Bell J, at [388], Gordon J, at [462], Edelman J). He acknowledges that Nettle J appeared to be of the view that the Mabo (No 2) test is the only test for non-alienage on the basis of Aboriginality (at [278], [280]-[282]), but he submits that this is not part of the ratio decidendi of the case, and is not binding on this Court.
Mr Helmbright also submits that if the ratio decidendi in Love/Thoms is as the Minister submits, it nonetheless does not bind the Court in its fact finding in this proceeding. In oral argument senior counsel submitted:
If the court accepts the applicant’s submission that the ratio of Love is restricted to the way in which the parties were, in the case in Love, there is no binding authority on the court to determining the present matter. Indeed, just as the position of Mr Love and Thoms was sui generis, the basis of our client’s claim not to be an alien has also never been previously considered. As was said at first instance in McHugh, this leaves open for future argument by a non-citizen of Australia that on the basis of his or her Aboriginality he or she is not an alien, notwithstanding that he or she does not satisfy each of the elements of the Mabo tripartite test.
Assuming that this Court is not bound to apply the Mabo (No 2) test, Mr Helmbright makes two broad submissions as to why this Court should apply Deane J’s approach from the Tasmanian Dam Case.
First, referring to French J’s reasons in Attorney-General (Cth) v Queensland [1990] FCA 358; 25 FCR 125 at 148, he submits that the meaning of “Aboriginal Australian” varies depending on the context in which the term is used, and whereas the Mabo (No 2) test is concerned principally with questions of native title, Deane J’s test has been applied in a broader range of settings. This, it is submitted, shows that Deane J’s test is a suitable alternative to the Mabo (No 2) test for determining alienage.
Second, he submits that it is inappropriate to require recognition by a Yorta Yorta society which holds or is entitled to hold native title, and accordingly Deane J’s test is to be preferred to the Mabo (No 2) test. In making this second submission Mr Helmbright’s argument may assume that recognition by a Yorta Yorta society is part of the Mabo (No 2) test.
The cases referred to by Mr Helmbright in support of his submission that Deane J’s test or something like it has been applied in a range of contexts include Gibbs v Capewell [1995] FCA 25; 54 FCR 503 at 512, Shaw v Wolf[1998] FCA 389; 83 FCR 113 at 122 and Eatock v Bolt [2011] FCA 1103; 197 FCR 261 at [188]. Mr Helmbright submits that, by contrast, the Mabo (No 2) test should be seen in light of Brennan J’s substantive reasoning that native title exists where a traditional connection with land has been substantially maintained since sovereignty, and it should be confined to that context.
As to why it is inappropriate to require recognition by a Yorta Yorta society holding native title, Mr Helmbright submits:
(a)the particular purpose of s 51(xix) of the Constitution is to determine whether a person is an alien and, therefore, susceptible, inter alia, to permanent exclusion from Australia;
(b)the Courts have recognised that “strong, vibrant and dynamic” contemporary Aboriginal communities exist even if they cannot meet the ‘continuity’ requirements of s 223(1) of the Native Title Act 1993 (Cth); and
(c)it is incongruous that a person descended from an Aboriginal person who, genuinely, self-identifies as Aboriginal and is recognised by a contemporary vibrant Aboriginal community could be said not to belong to Australia just because continuity is not proved.
Mr Helmbright refers to the dispersion and dispossession of Aboriginal Australians which has meant that many communities or societies have been unable to survive without disruption. He submits that to require that a person who identifies as Aboriginal be recognised by a society that has survived without disruption would “compound the sins that have been wrought upon the First Peoples of this continent and make the Constitution an ally of that dispersion and dispossession in a way eschewed in Mabo”. He therefore submits that the term “Aboriginal Australian” should be construed “generously” and consistently with the authorities on s 51(xxvi) (the “race power”). In oral submissions, senior counsel put the point as follows:
The loss of continuity is attributable to the forces of dispersion and possession which flowed from European settlement. It doesn’t say anything about a spiritual connection of the people who were affected by that with the Australian polity or the Australian continent. In addition, the requirement that the observance of laws and customs must have continued substantially uninterrupted is a technical requirement making the proof of native title more difficult … the circumstances that the Native Title Act only recognises rights found in the normative rules of a society that existed pre-sovereignty.
mtwAC’s submissions
Like Mr Helmbright, mtwAC submits that, in deciding what test should be used to determine who is an Aboriginal Australian for the purposes of s 51(xix) of the Constitution, the Court should take account of the devastating consequences suffered by Aboriginal Australians, and Tasmanian Aboriginal people in particular, since European settlement. It submits that to require recognition by a society holding native title which meets Yorta Yorta requirements would be to ignore this history. It submits:
…the relevant tripartite test formulation should be applied in a contextual fashion, which would be dependent on Aboriginal historical and cultural factors specific to the particular peoples or region concerned. Regardless of which tripartite test formulation is applied, taking into account context considerations, the community recognition limb of each respective formulation must consider the unique Tasmanian Aboriginal cultural history.
mtwAC submits that, in the Tasmanian Dam Case, Deane J took a broad view of community recognition which looked to “the Australian Aboriginal people generally rather than to any particular racial sub-group”. This is said to be a more appropriate standard, at least in the present case. It is also said to be consistent with the reasoning of Bell, Gordon and Edelman JJ in Love/Thoms at [74], [374], and [398] respectively, and with the fundamental concept of “belonging” to Australia, which is the antithesis of alienage.
mtwAC submits that “to equate ‘community recognition’ with ‘continuous connection’ is to conflate an inquiry concerning citizenship/alienage with an inquiry concerning property rights/native title” and can lead to circularity because being Indigenous is a precondition to holding native title. mtwAC therefore submits that this Court can and should find that recognition by a Yorta Yorta society that holds, or is entitled to hold, native title is not necessary, either by applying Deane J’s test or by taking a flexible approach to the Mabo (No 2) test.
The Minister’s submissions
The Minister submits that the only test this Court can apply to decide whether Mr Helmbright is an alien is the test in Mabo (No 2). He submits the content of the test which the Court must follow must be drawn from the reasons of Nettle J in Love/Thoms. In particular, the Minister relies on what Nettle J said at [278], about the third limb of the Mabo (No 2) test:
So long as an Aboriginal society which enjoyed a spiritual connection to country before the Crown’s acquisition of sovereignty has, since that acquisition of sovereignty, remained continuously united in and by its acknowledgment and observance of laws and customs deriving from before the Crown’s acquisition of sovereignty over the territory, including the laws and customs which allocate authority to elders and other persons to decide questions of membership of the society, the unique obligation of protection owed by the Crown to the society and each of its members in his or her capacity as such will persist.
This, the Minister contends, embodies a native title approach. In support of his submission that this Court is bound to follow a native title approach, the Minister makes four points.
First, the Minister notes that Bell J stated her Honour “was authorised to say there was no disagreement as to principle” between the members of the majority. The Minister submits that the majority must therefore be taken to have agreed with the position adopted by Nettle J. The Minister also submits that Nettle J’s later reasons in Chetcuti v Commonwealth [2020] HCA 42; 95 ALJR 1 at [38]-[40], sitting as a single judge, are consistent with the Minister’s submissions on this point.
Second, the Minister submits that, to the extent there are differences between the reasons of the majority justices, “Nettle J’s judgment reflects the ‘minimum position’ to be distilled” and is therefore binding on this Court.
Third, the Minister submits that Nettle J’s approach accords with Brennan J’s reasons in Mabo (No 2), in particular where Brennan J stated at 59-60:
Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.
Fourth, the Minister submits that, although some justices in Love/Thoms left open the possibility that a test other than the test in Mabo (No 2) might be used to determine whether a person is a non-alien Aboriginal Australian, this Court remains bound to apply the tripartite test; in other words, if the law is to be developed further, that must be done by the High Court itself.
The Minister submitted:
While native title is a discrete area of law (particularly following the enactment of the Native Title Act 1993 (Cth)), if one is to accept that there is a class of Aboriginal Australian that is not able to be treated as an alien, then to proceed as if Brennan J’s test in Mabo (No 2) is unsuited to informing the understanding of s 51(xix) would be to ignore “the content, nature and depth of that connection” with lands and waters and thus “distort the concept of alienage”. It is the connection between Indigenous peoples and land and waters that, upon Gordon J’s explanation, establishes them as non-aliens. And it is the very same “traditional laws and customs” to which native title looks that “establish and regulate the connection between Indigenous peoples and land and waters” and thus whether a person is a non-alien on account of membership of a particular traditional society.
(Footnotes omitted.)
As an alternative to his submission that this Court is constrained as a matter of precedent not to apply Deane J’s test, the Minister submits that even if the Court has some choice about whether or not to apply it, this Court should not apply the Tasmanian Dam Case test for three reasons.
First, as the extract above indicates, at least on Gordon J’s explanation in Love/Thoms, the Minister submits it is the depth of connection between traditional law and custom and particular land that establishes certain Aboriginal Australians as non-aliens. The Minister therefore submits that a test concerned with connection to land in accordance with traditional law and custom is the appropriate test for determining whether a person is not an alien.
Second, the Minister submits that the Parliament has “significant flexibility” in defining racial categories in federal legislation – in part because race is a social construct and in part because in interpreting the Constitution “grants of power are to be construed with all the generality that their words permit”. By contrast, the Minister submits that “limits on power are not approached in the same fashion”. This is in part a response to Mr Helmbright’s submission that “[t]here is no textual basis in the Constitution to approach the meaning of Aboriginal Australian differently for the purpose of s 51(xix) to the manner in which it has been treated for the purpose of the race power in s 51(xxvi)”. The Minister also submits that in Love/Thoms each member of the majority “expressly eschewed any reliance on race in explaining the limit on s 51(xix)”.
Third, the Minister submits that the Tasmanian Dam Case test is not binding on this Court: first, because it was dicta; second, because his Honour was considering a different head of power; and third, because it did not command majority support. Finally, the Minister submits that the test is vague and indeterminate, as “[i]t provides no objective criteria for identifying an “Aboriginal community”.
RESOLUTION
The questions which must be resolved are the following:
(a)Is the Court bound to apply the Mabo (No 2) test to determine if the applicant is an Aboriginal Australian and therefore not an alien for the purposes of the Migration Act?
(b)If so, what is the content of that test? In particular, does it include a requirement that a person be recognised by a group which meets the requirements of a “Yorta Yorta society” and holds, or is entitled to hold, native title in particular land and waters?
(c)If the Mabo (No 2) test is applied to the applicant’s circumstances, as they are revealed by the evidence, is the applicant an Aboriginal Australian and therefore not an alien? Depending on the answer to the second question, this third question may need to be answered by reference to what Brennan J said in Mabo (No 2) itself, or by reference to what the majority said in Love/Thoms about that test, or alternatively only by reference to what Nettle J said and what the Minister contends is a native title approach.
(d)If the Court is not bound to apply the Mabo (No 2) test, can and should it apply the test set out by Deane J in the Tasmanian Dam Case?
(e)If the Tasmanian Dam Case test is applied to the applicant’s circumstances, as they are revealed by the evidence, is the applicant an Aboriginal Australian and therefore not an alien?
First question: is this Court bound to apply the Mabo (No 2) test?
I accept the submissions of the Minister that until Love/Thoms, there was ample authority for the proposition that it is open to the Parliament to treat a person who does not hold statutory citizenship as an “alien” within the meaning of s 51(xix) of the Constitution: see Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28 at [2], Gleeson CJ, Gummow and Hayne JJ, at [190], Heydon J; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 at 25, Brennan, Deane and Dawson JJ, at 64-65, McHugh J; Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; 225 CLR 1 at [15], Gleeson CJ; Cunliffe v Commonwealth [1994] HCA 44; 182 CLR 272 at 313 Brennan J, at 374-375 Toohey J.
To say that much is really only to recognise that the argument made in Love/Thoms had not been made before.
The Minister’s submissions describe the outcome in Love/Thoms as the statement of a “narrow qualification” on the propositions in the earlier cases. There may be various descriptors available. In my opinion, it is more appropriate to describe the outcome in Love/Thoms as the most recent example of the proposition set out by Gibbs CJ in Pochi v MacPhee [1982] HCA 60; 151 CLR 101 at 109, that the word “alien” involves a constitutional concept, to be interpreted by the Court, and that Parliament cannot define “alien” in a way which could expand its legislative power to include, under cover of that head of power, persons who could not possibly answer the description of “aliens”. See Bell J’s reasons in Love/Thoms [50]. See also at [7], Kiefel CJ; at [87], Gageler J; at [168], Keane J; at [236], Nettle J; at [310], Gordon J; at [433], Edelman J. While accepting that proposition, of course one of the clear dividing lines between the majority and the minority was the application of this proposition in relation to non-citizens who were Aboriginal Australians.
Love/Thoms proceeded by way of two special cases stated for consideration by the High Court. The questions stated and the answers given appear at the end of the report of the case. The form of the answers given was not the form expressed by all majority justices in their reasons: see, eg Edelman J’s different formulation at [468]. Nevertheless, this is the form of the Court’s orders.
Matter No B43/2018
The questions stated in the special case for the opinion of the Full Court are answered as follows:
1.Is the plaintiff an “alien” within the meaning of s 51(xix) of the Constitution?
Answer:The majority considers that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. The majority is unable, however, to agree as to whether the plaintiff is an Aboriginal Australian on the facts stated in the special case and, therefore, is unable to answer this question.
2. Who should pay the costs of this special case?
Answer:The defendant.
Matter No B64/2018
The questions stated in the special case for the opinion of the Full Court are answered as follows:
1.Is the plaintiff an “alien” within the meaning of s 51(xix) of the Constitution?
Answer: Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. The plaintiff is an Aboriginal Australian and, therefore, the answer is “No”.
2. Who should pay the costs of this special case?
Answer: The defendant.
Common to both answers is the following proposition:
Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution.
The differences in the answers reflect different fact finding in relation to the two plaintiffs. It will be recalled that at a factual level, the difference on the agreed facts before the Court between the two plaintiffs was that Mr Thoms was recognised as a member of a group which held native title (the Gunggari People) and Mr Love was recognised as a member of a group which did not hold native title (the Kamilaroi People). After the Court’s orders, on 1 July 2020, Edelman J made orders remitting both cases to the Federal Court for “further hearing and determination in accordance with the reasons of this Court”.
The common part of the answers in the Court’s orders mirrors what is said by Bell J at [81] of her Honour’s reasons:
I am authorised by the other members of the majority to say that although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. The difference with respect to Mr Love is a difference about proof, not principle.
When that common part is taken together with the statement at [81] of Bell J’s reasons, in my respectful opinion it is the proposition that “Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution” which is the ratio decidendi of Love/Thoms.
My approach to the statement at [81] is consistent with the approach taken in Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 702; 277 FCR 38 at [49].
The specific incorporation of Brennan J’s approach in Mabo (No 2) as the way the term “Aboriginal Australian” is to be understood in that proposition, binds me as a single judge of this Court to apply Brennan J’s approach in determining whether Mr Helmbright is an “Aboriginal Australian”.
Of course, it is true that at [80], Bell J observed that
The special cases do not raise consideration of the circumstances, if any, in which a person who is not within the Mabo (No 2) test may nonetheless establish that he or she is an Aboriginal Australian.
(Footnotes omitted.)
I accept that another way of expressing the position might well be to state that the agreement of the majority was limited to Brennan J’s approach being “sufficient but not necessary to establish Aboriginality for s 51(xix)”. That was the applicant’s submission. The applicant relied on some passages from the trial decision of McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 at [196]-[197]. On appeal, in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223 the Chief Justice (at [63]) noted that the
proceeding before the primary judge and the appeal were conducted on the basis that the majority of the High Court in Love and Thoms rested their conception of Aboriginal Australian upon the tripartite test of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 70.
I said at [396]:
I respectfully agree with the Chief Justice’s reasons at [65] that the question of how the descent aspect of the tripartite test is to be determined was not the subject of detailed submissions before this Court, and is a question of some complexity. Indeed, putting to one side the prospect that the tripartite test may not be the only approach (see Love/Thoms at [80]), the relationship between on the one hand what has been said in Love/Thoms about “Aboriginality” by reference to the High Court’s decision in Mabo (No 2) on the common law’s recognition of native title, and on the other hand the operation of the statutory scheme of native title in the Native Title Act 1993 (Cth), is in my respectful opinion yet to be worked through in detail.
Mr Helmbright’s claim does, of course, require some of that working through in detail.
Besanko J expressed a firmer view. His Honour said (at [103]):
I reject any suggestion that satisfaction of anything less than the tripartite test is sufficient. Not only would that be inconsistent with the way in which this case was conducted, but more importantly, it would involve a modification or variation of the tripartite test laid down by the High Court in Love. In my respectful opinion, any modification or variation of the tripartite test is a matter for the High Court.
Given the parties’ agreement in McHugh that Brennan J’s approach in Mabo (No 2) should apply, and their conduct of the proceeding in that way before the primary judge, the issue which now arises simply did not arise in McHugh.
I accept that, in point of legal principle, it may well be that an approach other than the adoption of Brennan J’s approach in Mabo (No 2) is available to determine whether a person is, or is not, an Aboriginal Australian and therefore not an alien within s 51(xix) of the Constitution. The approach of Deane J in the Tasmanian Dam Case has been used to determine Aboriginality in other legal contexts: see [124]-[129] below. There are other approaches. The submissions made by the applicant and mtwAC, which I have set out at [81]-[85] and [86]-[88] above respectively, are not without force. However, these are not matters for a single judge presently to embark upon.
Second question: what is the content of that test?
That leaves the question of what is the content of the test set out by Brennan J in Mabo (No 2)? On one view, this might not appear a difficult question to answer. Yet, with respect, the divergent majority reasoning about alienage and Aboriginal Australians in Love/Thoms presents challenges in understanding how the Mabo (No 2) test is intended to be applied in the very different context of alienage.
The principal source of authority on the content of Brennan J’s approach is what his Honour himself said. Although not dealing with exactly the same situation, in Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; 87 NSWLR 609 the NSW Court of Appeal at [98], Leeming JA (with whom Gleeson JA agreed) said:
This court is bound by what the High Court said in Farah as to second limb Barnes v Addy liability. It is bound directly. Ultimately, it is bound by reason of s 73 of the Commonwealth Constitution. This court is not bound indirectly by another court’s interpretation of what the High Court said. To paraphrase the words of McHugh J in Marshall, the primary guide to understanding the law as stated by the High Court is the language of that court’s reasons, and a judicial decision as to what those reasons mean is at best a guide to, but cannot control, the meaning of that language.
That principle has been repeated on many occasions: see Australian Broadcasting Corporation and Others v Chau Chak Wing [2019] FCAFC 125; 271 FCR 632 at [97]; Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 at [149]; Obeid v Lockley [2018] NSWCA 71; 98 NSWLR 258 at [167]-[170], [237]-[241]; Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237; 315 FLR 31 at [132]-[134]; Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172; 100 NSWLR 155 at [239(3)]. The context in these authorities was the convention, or principle of comity, that one intermediate appellate Court should generally follow the decisions of another intermediate appellate Court: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]. However, the same approach as I take here has been taken by Lee J in Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets [2020] FCA 1493 at [60], and I respectfully agree.
Although mtwAC is a corporation, it was not suggested by the Minister that this necessarily precludes it participating in the mutual recognition process described by Brennan J in Mabo (No 2). Senior counsel submitted:
If there was a way that it could be shown that there were traditional laws and customs that were being exercised by a Tasmanian Aboriginal community and they had somehow vested it in a corporation, I don’t know that we necessarily say that it’s impossible for a corporation to do it; it seems improbable. But there’s no evidence of that in this case, in any event
…
I mean, we wouldn’t say that – for example – that a PBC would have no – would necessarily have no role, and that would be an example of, if the rules of the PBC listed traditional laws and customs in order to identify who were members.
In this extract, the reference to “PBC” is a reference to a prescribed body corporate, being a corporation which, after a determination of native title is made, is declared by the Federal Court under s 56(2) of the Native Title Act to hold the rights and interests comprising the native title on trust for the common law holders.
I have found at [146]-[148] above that when explaining what kind of mutual recognition from a group is required, Brennan J emphasised that recognition must be focussed on how the law and custom of the group operates to permit or preclude membership. As I have found earlier, that is why his Honour focused on “elders” (a term in my opinion used to convey a sense of hierarchy in Aboriginal communities by reason of traditional law and custom) and “others enjoying traditional authority” (a term in my opinion used to capture those who may not be “elders” but have a role under traditional law and custom in deciding which people are properly considered members of a particular group).
This aspect of mutual recognition, which is particular to the Mabo (No 2) test, may likely be proven by evidence about the processes by which a decision is made to permit a person to join the group, or to exclude them. And by evidence about who makes that decision.
The “group” for the purposes of the application of the Mabo (No 2) test to Mr Helmbright is those people mtwAC represents – the people of the North East nation of Tasmania. That is the relevant society or community.
I have noted above the submissions of the Minister concerning what kind of entity representing a group could give recognition. It is unnecessary and inappropriate to be prescriptive about this aspect: for example, Brennan J’s approach in Mabo (No 2) expressly acknowledges mutual recognition might be provided by elders, and that would be enough.
Certainly from the “native title” approach taken by the Minister in this proceeding, it could hardly then be denied that the very entity which the Native Title Act contemplates will hold native title for the common law holders is incapable of participation in the mutual recognition process under the Mabo (No 2) test. To say as much is, I emphasise, not to suggest that it is only such bodies who might participate in mutual recognition. But such entities must logically be included, if a “native title” approach is taken. If a different approach is taken, as I find the majority reasoning in Love/Thoms contemplates, there is also no conceptual difficulty in including such entities. The relevant society or community may have elected to determine its membership through a range of mechanisms, and in the world in which Aboriginal and Torres Strait Islander communities must operate in the 21st century, this may include corporations.
mtwAC is not a prescribed body corporate under the Native Title Act. It is an agreed fact that it is a corporation registered by the Office of the Registrar of Indigenous Corporations under the CASTI Act.
There are a number of requirements under the CATSI Act for registration, amongst them in s 29-5 what is called an “Indigeneity requirement”; namely that a specified proportion of the members of the corporation must be “Aboriginal and Torres Strait Islander persons”. That term is defined expansively in s 700-1 to include corporations in some circumstances, but as to natural persons it is defined to mean:
(a) an Aboriginal person;
(b) a Torres Strait Islander;
(c) an Aboriginal and Torres Strait Islander person; and
(d) a Torres Strait Islander and Aboriginal person.
In turn, and in a clear demonstration of the circularity and challenges which come with the task of requiring that human beings must be categorised by reference to inherent characteristics (even if for objectively beneficial purposes), s 700-1 defines “Aboriginal person” to mean
[a] person of the Aboriginal race of Australia.
“Torres Strait Islander” is given different content and is defined to mean
a descendant of an Indigenous inhabitant of the Torres Strait Islands.
I find that, taking into account the realities of a mutual recognition process occurring in the 21st century and not the 18th or 19th centuries, there is no rational basis to exclude a corporation established under the CATSI Act, or any similar legislation at the state or territory level, from being the vehicle through which mutual recognition by a society or community can be established. However, it is no more than a vehicle. In each case, whether the mutual recognition which has occurred satisfies the test in Mabo (No 2) is likely to depend on how such a corporation is constituted and the content of its rules and practices. To that extent I accept the Minister’s submissions. It is through these matters that the characteristics identified by Brennan J as necessary are either likely to be present, or absent. The membership rules and practices thus must bear some relationship to the traditional law and custom of the community, recalling the explanation of “traditional” given at [139]-[140] above.
I emphasise this reasoning is necessary only because I have found as a single judge I am bound to apply the Mabo (No 2) test.
Accordingly, I find mtwAC is the kind of entity capable of participating in a mutual recognition process for the purposes of the Mabo (No 2) test on behalf of the community it represents, being the Aboriginal peoples of the North East region of Tasmania or the country of tebrakuna, as it is described in mtwAC’s vision statement. I turn then to examine the evidence about its rules and practices in relation to membership.
Membership is determined by r 5.2.2 of the mtwAC Rule Book, which provides
Who can apply to become a member (eligibility for membership)?
A person who is eligible to apply for membership must be an individual who is (choose from the examples below):
(a) be open to individuals at least 15 years of age
must be in writing
must be nominated by at least two members of the corporation
accepted as a Tasmanian Aboriginal person
The final criterion – “accepted as a Tasmanian Aboriginal person” is thus a separate requirement. It is not entirely clear how this latter requirement sits with r 6.2.3 (which contemplates a member might not be an “Aboriginal or Torres Strait Islander person”), but for the moment that issue can be put to one side.
So far as I have been able to ascertain, there is no definition in the mtwAC Rule Book of “Tasmanian Aboriginal person” for the purposes of r 5.2.2. This gap appears to be filled by what in the agreed facts is described as the “practice” of the mtwAC Board to require, with an application for membership
A descent chart setting out the applicant’s line of biological descent from a person who is accepted by the mtwAC as being a member of a clan living in north-eastern Tasmania at about the time of first European settlement, and, if required, birth and death certificates evidencing that line of descent[.]
To see this practice as a core part of the membership process of mtwAC, even if not in the Rule Book, is consistent with the first part of the “Vision statement” for mtwAC, also annexed to the agreed facts. There the following statement is made:
melythina tiakana warrana members are direct descendants of the Aboriginal Ancestors from the Country of tebrakuna, known as the region of northeast Tasmania.
(Original emphasis.)
The evidence establishes a membership decision is made by the directors of mtwAC: see r 5.2.4 of the mtwAC Rule Book. The directors are required to reject a membership application unless a person “meets all the eligibility for membership requirements”: r 5.2.4(c). An available inference from the evidence (in particular the practice described at [312] above) is that r 5.2.4(c) should be understood in its proper context to require rejection of a membership application unless the membership applicant can establish the “line of biological descent” referred to in the agreed facts. I draw that inference.
As to the directors who make the membership decision, r 8 does not confine eligibility for directorship to persons who are “elders” of the group. Any person who is a member and is at least 18 years old is eligible to be a director: r 8.2.1. By r 8.2.2(a), a majority of the directors must be “individuals who are Aboriginal and Torres Strait Islander persons”. Those terms are defined in the Rule Book in the following way in Schedule 1:
“Aboriginal person” means a person of the Aboriginal race of Australia.
“Aboriginal and Torres Strait Islander person” means the following:
a) An Aboriginal person;
b) A Torres Strait Islander;
c) An Aboriginal and Torres Strait Islander person;
d) A Torres Strait Islander and Aboriginal person.
…
“Torres Strait Islander” means a descendant of an Indigenous inhabitant of the Torres Strait Islands.
On one view this would broaden out the eligibility for directorship to (for example), Torres Strait Islanders who are not descended from a North East nation person, but the cross-reference to being a member, read with the agreed “practice” to which I have referred, indicates directors are expected to have a descent connection to a clan living in north-eastern Tasmania at about the time of first European settlement, even if by reason of other ancestry they also identify as (for example) Torres Strait Islander.
Membership rule books of organisations like mtwAC should not be approached in such a rigid or stereotypical way as to ignore the realities of the lives and families of Aboriginal and Torres Strait Islander people, whose familial, cultural, customary and traditional associations may pull in more than one direction.
That intramural decisions such as who is and who is not a member of an Aboriginal or Torres Strait Islander community, even within the framework of a corporation under the CATSI Act, should be approached with some latitude and flexibility, and with an emphasis on the role of elders, was recognised by Pritchard J in Sandy v Yindjibarndi Aboriginal Corporation (No 4) [2018] WASC 124; 126 ACSR 370 at [635]-[638]:
The fact that the witnesses in this case expressed different views about the detail of the content of the traditional laws and customs of the Yindjibarndi people was not surprising. As French J observed in Sampi v The State of Western Australia:
Within a single coherent system of traditional law and custom there may be differences of interpretation and different versions of particular stories told. An apposite analogy may be seen in the differences of view among those directly involved in the administration of the Australian legal system and commentary on it in connection with matters such as the interpretation of the common law and equity and even of the Constitution and statutes. There are sometimes debates about the origins and content of particular rules of judge-made law. And outside the very small population of persons involved in the administration of the law, there is, in the wider community, a range of awareness of the law from the well-informed to the profoundly ignorant. None of that detracts from the existence and validity of the legal rules by which our society is governed. In a system of law and custom transmitted by oral tradition these general propositions have even greater force.
To similar effect, the full Federal Court in Northern Territory v Alyawarr Kaytetye, Warumungu, Wakaya Native Title Claim Group recognised that the membership of any indigenous society can be defined by a variety of rules, and that there may be differences of view in relation to the content or nature of those rules, or the strictness with which they should be applied. The Court observed that in the resolution of membership disputes,
it is not ... productive of any practical benefit to require that the laws and customs of indigenous society and the rights and interests arising under them be presented as some kind of organism in amber whose microanatomy is available for convenient inspection by non indigenous authorities.
The differences of view expressed by the witnesses in relation to the content of, and the importance of observing, Birdarra Law, Galharra and Nyinyadt suggest that caution should be applied in considering the evidence of the directors as to their application of the Birdarra Law criterion for membership of YAC. These are questions over which minds may (and in this case, do) differ. Consequently, it would be appropriate to grant some latitude to the directors’ views about satisfaction of this criterion, in so far as the Court concludes that this criterion was in fact applied by the directors.
These differences of view also serve to highlight the fact that determining questions such as whether a person is a Yindjibarndi person according to Yindjibarndi law and custom are questions which, preferably, should be determined by Elders within the Yindjibarndi community.
On the basis of this evidence, and the inferences I have drawn, I find that membership of mtwAC is determined in two ways which fall within the concept of mutual recognition of membership described by Brennan J in Mabo (No 2). First, mtwAC’s requirement in practice of establishing a descent connection to a clan living in north-eastern Tasmania at about the time of first European settlement. Secondly, the requirement for a nomination from two existing mtwAC members, indicating support from within the group for that recognition.
There was no evidence directed specifically at establishing that the requirement for a descent connection was in accordance with traditional law and custom of the clans of north-eastern Tasmania. However, it is well-established in native title law that descent is one of the core pathways in many systems of traditional law and custom by which membership of a group is determined, and through which rights and interests are transmitted.
I find that in the two ways set out at [310], [312] above, mtwAC’s membership rules and practices are more likely than not to have their origins in the traditional law and customs of the clans of north-eastern Tasmania, albeit they have been substantially adapted to the 21st century requirements of membership of a corporation.
The difficulty in the application of the evidence to the mutual recognition limb lies in proof that recognition is given by “elders” or “those otherwise enjoying traditional authority” within the group. That requirement is particular to the Mabo (No 2) test. The evidence discloses, and I have found, that membership of mtwAC is determined by the directors. Those people need only be over 18 years of age, and themselves qualified as members. That would not satisfy the Mabo (No 2) test.
However, there was evidence about another body associated with mtwAC, called the “Circle of the Elders”. It is not a body recognised in mtwAC’s Rule Book. The agreed facts are that the Circle of Elders comprises members of mtwAC who are selected by mtwAC for their “knowledge and wisdom”. It is agreed a person can become a part of the Circle of Elders through a formal process via a nomination and voting process at the annual general meeting. It is agreed that in practice, since the establishment of the mtwAC, the Board consults the Circle of Elders from time to time on “matters relevant to the mtwAC”.
It is also an agreed fact that
Members of the Board and the Circle of Elders have knowledge about the lines of ancestry going back to the Indigenous persons living in north-eastern Tasmania at the time of first European settlement.
There are no agreed facts, and no other evidence about the knowledge of the members of the Circle of Elders about the traditional laws and customs of the clans of north-eastern Tasmania, nor about the application of any such traditional law and custom to the determination of membership of mtwAC or recognition of a person otherwise as a member of the country of tebrakuna, or any differently described community of Aboriginal people from the North East nation in Tasmania.
Given I have found I am bound to apply the Mabo (No 2) test, and given my findings adverse to the applicant about the membership process under the mtwAC rules, the only forensic route left to the applicant is to prove that the role of the Circle of Elders is capable of meeting the second aspect of the mutual recognition limb of the Mabo (No 2) test. I find he has not proven this to be the case for at least three reasons.
First, there is no evidence that the Circle of Elders decides who can and who cannot become a member of mtwAC. Indeed, if they did, this may well be contrary to mtwAC’s rules. This stands in contrast to other CATSI corporations, where a consultation requirement may be express: see for example the situation in Ngarluma Aboriginal Corporation v Ramirez [2018] FCA 1900; 364 ALR 94, where the rules of the corporation obliged the directors to consult with the Council of Elders on membership applications: see [150]. In the present case, the evidence is that membership is decided by the Board of Directors, and while in practice descent may be a criterion that is applied (outside the rules), there is no basis in the evidence for the Court to find the membership decision is made (and thus recognition given) by people who are “elders” or “other persons enjoying traditional authority among those people”. The highest the evidence reaches is the agreed fact that:
In assessing membership applications, the Board would always consult any member of the Circle of Elders present at the relevant Board meeting.
Second, even if contrary to the finding above, it is fact that the Circle of Elders can have a role in deciding membership, there is no evidence that those who comprise the Circle of Elders (or any of them) had a role in deciding Mr Helmbright’s mtwAC membership – and that is the factual question before the Court for the purpose of the application of the Mabo (No 2) test. The question is whether Mr Helmbright was recognised by elders or those otherwise enjoying traditional authority within the community represented by mtwAC. The recognition and membership certificates annexed to the agreed facts record Mr Helmbright’s recognition and membership as having occurred at a directors’ meeting on 15 February 2020, but the evidence does not go beyond that.
Third, even if contrary to the findings above, it is fact that the Circle of Elders can have a role in deciding membership, and had such a role in deciding Mr Helmbright’s membership, there is no evidence that – whatever respect is afforded to those who comprise the Circle of Elders – the individuals who comprise the Circle of Elders are “elders” in the sense traditionally understood; or are “other persons enjoying traditional authority among” the clans of north-eastern Tasmania.
It is not enough that a body which sits outside the formal structure of mtwAC is called the Circle of Elders. The evidence does not establish the people in that group are elders in any traditional sense. There is no evidence at all about who, by the traditional laws and customs of the clans of north-eastern Tasmania, is considered an “elder”. There is no evidence about which other people, by the traditional laws and customs of the clans of north-eastern Tasmania, may be considered to enjoy authority within the group.
The evidence establishes individuals are nominated, and voted into the Circle of Elders by the general membership of mtwAC. While it is an agreed fact that people are “selected” (which I infer means voted in) on the basis of their “knowledge and wisdom”, the evidence gives no content to that bare proposition. Many people, including older people, might genuinely be seen as having knowledge and wisdom, but the source of that knowledge and wisdom could be any number of life experiences, or learnings. The Mabo (No 2) test looks specifically to the position of elders, or the equivalent of elders, under traditional law and custom. Its looks to knowledge of law and custom handed down through the generations since prior to European sovereignty.
I accept there is considerable evidence about the recognition and certification functions mtwAC performs for various government purposes. I do not discount that such evidence could be relevant to the question whether a non-citizen is an Aboriginal Australian if an approach other than that of Brennan J’s test in Mabo (No 2) were adopted. However, by its nature that evidence is unlikely to assist in the determination of mutual recognition by elders or those otherwise holding traditional authority to determine membership of a group of Aboriginal or Torres Strait Islander people.
These matters may highlight the increasing disconformities likely to emerge as other non-citizens who identify as Aboriginal seek judicial determinations about whether or not they are aliens, and one part of the federal government continues to contend that such evidence, accepted by other parts of government state and federal, is irrelevant.
Conclusion
The applicant has not proven both aspects of the mutual recognition limb of the Mabo (No 2) test.
Fourth question: Can the Court apply Deane J’s test from the Tasmanian Dam Case?
I have concluded a single judge is precluded from applying the tripartite test as expressed by Deane J in the Tasmanian Dam Case.
Fifth question: Deane J’s test applied to the evidence about the applicant
On the assumption I am wrong to see myself sitting as a single Judge as bound by Brennan J’s test in Mabo (No 2), then I make the following findings about the application of Deane J’s test in the Tasmanian Dam Case to the evidence about the applicant. To recap, that test is whether an individual is a person of Aboriginal descent, albeit mixed, who identifies themselves as such and who is recognised by the Aboriginal community as an Aboriginal person.
I adopt the findings and reasoning at [268] to [334] on the Mabo (No 2) test: they are equally applicable to the Deane J test in the Tasmanian Dam Case.
Plainly, there are three limbs to the Tasmanian Dam Case test and the third is expressed as no more than recognition “by the Aboriginal community”. There is no additional element of the recognition having to be by particular kinds of group members, who have traditional authority. There is no implication the recognition must be in accordance with traditional law and custom.
On this test, the applicant’s submission is that there is no barrier to the Court taking the same kind of approach as that taken by Merkel J in Shaw v Wolf at 122:
Communal recognition
Some form of communal identification or recognition will often form part of the process leading to self-identification. In determining whether there is communal identification or recognition the Court will consider the views held in a relevant Aboriginal, or even the general, community as to whether a person is regarded as an Aboriginal person. That evidence is relevant because in the modern Australian community such recognition is commonly the mode by which a person is identified as a person of the Aboriginal race of Australia. Communal identification may be based on physical, cultural, social or other attributes perceived in a particular community to exist in Aboriginal persons. Although the evidence will usually relate to views held by persons comprising the relevant community it is a communal, rather than personal, recognition that is relevant.
Community, like identity, is a social construct. A community may be a human settlement within a particular locality, a local social system - comprising a set of relationships that take place wholly or mostly within a locality, or it may embrace a type of relationship between geographically dispersed individuals having some common sense of identity. (The MacMillan Student Encyclopedia of Sociology, Ed M Mann (1983), p 56.)
The relevant community might be the general Aboriginal community in particular locality or a much smaller part of that community whose members reside in a specific locality or have some common historical, cultural or social characteristic. In some instances a community might consist of an extended Aboriginal family living in a particular locality. The Court, in having regard to evidence of identification or recognition by any relevant community, need not be concerned with defining the relevant community or communities other than in the most general sense. The weight to be attributed to such communal recognition as is found to exist will vary according to the facts of the particular case.
As Merkel J noted at 127, how a “community” is to be defined may depend very much on the evidence, and some caution must be taken in assessing that evidence:
A difficulty with the petitioners’ “community” submissions is that they assume that there is only one Aboriginal community in Tasmania and on the evidence before me this assumption cannot be accepted. I accept that as a result of its central role in Tasmania in relation to Aboriginal affairs, if an individual is recognised by the TAC as being an Aboriginal person, then, subject to descent, they are likely to be an Aboriginal person. I am not satisfied, however, that if the TAC does not recognise an individual as Aboriginal the converse is true and that they are not an Aboriginal person. There is also a difficulty in placing too much weight on the opinions of individual persons, as to whether they recognise or do not recognise particular respondents as being Aboriginal. Opinions as to an individual’s membership of the Aboriginal community will be based on highly subjective personal, social and political reasons and consequently vary from person to person. As a result of the complexity inherent in defining an Aboriginal community in Tasmania, throughout these reasons I have referred generally to community recognition, or to recognition by a section of a community, rather than to a defined community.
On the evidence which I have described earlier in these reasons, there is no doubt the applicant is recognised by the Aboriginal community in Tasmania as an Aboriginal person. So too are other members of his family, which accords with the communal nature of the recognition. The wider recognition role performed by mtwAC in Tasmania, for the purposes of the Tasmanian government’s certification processes for access to certain government services limited to Aboriginal and Torres Strait Islander people, also supports a finding that the applicant’s recognition by mtwAC is recognition by an Aboriginal community within the terms of Deane J’s test in the Tasmanian DamCase.
This finding is also consistent with the findings of the Tribunal which I have extracted at [68] above.
I note that although the applicant referred in his written submissions to other approaches, such as that of French J in Attorney-General (Cth) v Queensland at 147 (which suggested that in some contexts descent would be sufficient), he did not submit the Court should take any other approach than that set out in the Tasmanian Dam Case by Deane J.
Therefore, if contrary to my own conclusions, I were to be at liberty to apply Deane J’s test in the Tasmanian Dam Case, I would have found the applicant had proven on the balance of probabilities that he meets that test. I note senior counsel for the Minister also accepted in oral argument that Mr Helmbright could meet the Tasmanian Dam Case test.
Adopting this approach may involve the additional challenge of integrating the key aspect of the majority reasoning in Love/Thoms: that is, an enduring spiritual and cultural connection to country. The reality which is well-established across Australia is that Aboriginal and Torres Strait Islander groups all express a connection to particular land and waters, and that may well be why, even if Deane J’s approach in the Tasmanian Dam Case is taken to s 51(xix), for the purposes of deciding alienage a Court may be unable to go to a wide understanding of “community” such as that expressed in Shaw v Wolf, which is effectively unconnected to any land and waters. Given the emphasis by the majority in Love/Thoms on connection to country as underpinning the belonging of Indigenous people to the Australian polity, it may be necessary to retain in any test some link to land and waters in the approach to the description of the “community” of which a person is a member. These however are not matters for this Court to decide in this proceeding.
CONCLUSION
The Court’s findings on the application of the second aspect of the Mabo (No 2) test to the evidence before it mean that Mr Helmbright’s application must be dismissed. The Minister did not submit the Court should grant declaratory relief that Mr Helmbright is an alien. Even if it had been sought, my present view is that such relief would not be appropriate because many of the findings I have made which determined the second aspect of the mutual recognition test in Mabo (No 2) against Mr Helmbright are matters which may well be capable of proof. Further, if another approach is available to the question of how to identify a person as an Aboriginal Australian, then as I have explained, Mr Helmbright’s circumstances may well fall within such an alternative approach.
The parties will be given an opportunity to agree on appropriate costs orders, if any. Failing agreement the question of costs will be referred to a Registrar for determination by way of a lump sum costs order.
I certify that the preceding three hundred and forty-seven (347) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate:
Dated: 15 June 2021
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