House v Chief Minister of the Australian Capital Territory
[2022] ACTSC 317
•18 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | House v Chief Minister of the Australian Capital Territory |
Citation: | [2022] ACTSC 317 |
Hearing Date: | 4 and 18 November 2022 |
DecisionDate: | 18 November 2022 |
Before: | McCallum CJ |
Decision: | (1) That Roslyn Myra Brown and, subject to the approval of the Court, any other person nominated by her, be called as the Court’s own witness in this matter subject to the following conditions: (a) The evidence to be given by Roslyn Myra Brown, and any other person nominated by her and approved by the Court, be confined to such issues as are determined to be appropriate by the Court, after hearing from the parties; (b) The plaintiffs’ counsel and the defendants’ counsel be afforded the right to cross-examine Roslyn Myra Brown, and any other person nominated by her and approved by the Court, subject to any orders the Court considers just. (2) Indicate that, if Ms Brown wishes to nominate any witness including any expert witness to give evidence in the proceedings, the affidavits relied on and any expert report should be served by 16 February 2023. (3) List the matter for directions before McCallum CJ at 9am on Friday 17 February 2023. (4) That the costs of today’s application be costs in the cause. |
Catchwords: | CIVIL PROCEDURE — PARTIES — Application to be joined as defendant — Where primary relief sought is declaratory relief concerning the human rights of the Ngambri people — Challenge to government protocol acknowledging Ngunnawal people as the only traditional custodians of the land on which Canberra is built — application by a representative of the Ngunnawal people to be joined as a defendant — Whether legal rights of Ngunnawal people affected by relief sought — Where Ngunnawal people have broader cultural, social and economic interest in proceedings |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 210, 220, 270, 6901 Human Rights Act 2004 (ACT), ss 27(2), 40B, 40C(4) |
Cases Cited: | Boldi v Crozier [2015] NSWSC 2155 Commissioner for Fair Trading v Bowes Street Developments Pty Ltd [2021] ACTSC 282 Sharp v Rangott [2008] FCAFC 45; 167 FSR 225 |
Parties: | Paul Girrawah House ( First Plaintiff) Leah House ( Second Plaintiff) Chief Minister of the Australian Capital Territory (First Defendant) Director-General of the Community Services Directorate (Second Defendant) Attorney-General of the Australian Capital Territory (Third Defendant) ACT Minister for Aboriginal and Torres Strait Islander Affairs (Fourth Defendant) Roslyn Myra Brown (Applicant) |
Representation: | Counsel B Buckland ( Plaintiffs) J Dempster ( Defendants) P Bindon (Applicant) |
| Solicitors Griffin Legal ( Plaintiffs) ACT Government Solicitors ( Defendants) Sparke Helmore (Applicant) | |
File Number: | SC 270 of 2022 |
McCALLUM CJ:
1․These proceedings were commenced by an originating application filed on 1 August 2022 by Mr Paul House and Ms Leah House, each of whom identifies as a member of the Ngambri people and claims to be entitled to recognition as a traditional custodian of land on which the city of Canberra is built. By order made 2 September 2022, the two separate proceedings commenced by Mr House and Ms House respectively were consolidated pursuant to r 270 of the Court Procedures Rules 2006 (ACT).
2․The primary relief sought in the proceedings is a declaration under s 40C(4) of the Human Rights Act 2004 (ACT) that a protocol promulgated some time ago by the ACT Government breaches s 27(2) of the Human Rights Act in that it denies the Ngambri people, and other traditional custodians of the land currently known to as the Australian Capital Territory, the right to maintain, control, protect and develop their connection to that country and to be recognised as having that connection to country.
3․The plaintiffs contend further that the defendants have contravened s 40B of the Human Rights Act by failing to give proper consideration to the human rights of the Ngambri people and other traditional custodians of the land as recognised in s 27(2) of the Human Rights Act in promulgating, maintaining and enforcing the ACT Indigenous protocol and by promulgating, maintaining and enforcing the protocol contrary to s 27(2) of the Human Rights Act.
4․The circumstances in which the claim is brought, as indicated by the terms of the relief sought, is that the protocol promulgated by the ACT Government acknowledges only the Ngunnawal people as the traditional custodians of the land currently known as the Australian Capital Territory.
5․By application filed on 17 November 2022 but provided to the Court earlier in draft, Ms Roslyn Brown, as a representative of the United Ngunnawal Elders Council, seeks to be joined as the fifth defendant to the proceedings subject to specified conditions. The first four defendants to the proceedings are the Chief Minister of the ACT, the Director-General of the Community Service Directorate, the Attorney-General of the ACT and the ACT Minister for Aboriginal and Torres Strait Islander Affairs.
6․In the alternative, Ms Brown seeks an order that she and, subject to the approval of the Court, any other person nominated by her be called as the Court's own witness in the proceedings subject to specified conditions. The plaintiffs, Mr Paul House and Ms Leah House, have indicated that they do not oppose the alternative relief sought but they do oppose the joinder of Ms Brown as fifth defendant to the proceedings.
7․The relevant principles are helpfully set out in written submissions provided to the Court by Ms Bindon of counsel, who appears for the applicant, Ms Roslyn Brown. There is also an affidavit affirmed by Ms Brown setting out her connection with the United Ngunnawal Elders Council and her interest in the proceedings. The affidavit provides the relevant history to the recognition of the United Ngunnawal Elders Council by the ACT Government in 2002. Ms Brown explains the circumstances in which the Council came to be convened and identifies its Elders.
8․Ms Brown also explains the way in which the protocol promulgated by the ACT Government has conferred benefits on the Ngunnawal people, as they claim to be the traditional custodians of the ACT. In particular, the protocol recognises that all public speeches by representatives of the ACT Government are to include an acknowledgement of the Ngunnawal as the traditional custodians; all major official events are to include a welcome to Ngunnawal country; agencies are to consult with the United Ngunnawal Elders Council as the advisory body to the ACT Government on Aboriginal heritage and connection to country; agencies are to remunerate providers of cultural services appropriately; all ACT boards and committees should seek to include Indigenous membership if appropriate; and, if advice in relation to culture, heritage and connection to land matters is required, representation from the Ngunnawal Aboriginal community should be included.
9․It may be readily discerned from that evidence and the history I have described that these proceedings involve a measure of sensitivity between those who identify as Ngambri people and those who identify as Ngunnawal people. The Ngunnawal people unashamedly claim to be the sole traditional custodians of the land while the Ngambri people claim that the ACT Government's recognition of the Ngunnawal people’s claim is a breach of their human rights.
10․So far as the application for Ms Brown on behalf of the Ngunnawal people to be joined as the fifth defendant to the proceedings is concerned, I am not persuaded that is appropriate. Ms Bindon has helpfully set out the relevant authorities. The passages cited in her written submissions, in my respectful opinion, make plain that, by strict reference to the legal issues raised by the proceedings, Ms Brown as representative of the Ngunnawal people is not a proper party to the proceedings. That is because, in a strict legal sense, the legal rights of Ngunnawal people will not be affected by the relief sought by the plaintiffs.
11․Ms Bindon's application invokes rr 210, 220 and 6901 of the Court Procedures Rules. Rule 210 provides that each person whose presence as a party is necessary to enable the Court to adjudicate effectively and completely on all issues in dispute in a proceeding must be included as a party to the proceeding. The issue in dispute in the proceedings brought by Paul House and Leah House is whether their human rights and those of people in their position have been breached according to the proper construction of the Human Rights Act. Strictly speaking, as a matter of law, it is not necessary to hear from the Ngunnawal people in order to adjudicate on that issue.
12․That said, it is plain in my view that the Ngunnawal people have a broader cultural, social and economic interest in the proceedings. For that reason, I consider that it would be fairer to have some voice on behalf of the Ngunnawal people included in the determination of the Houses' claim.
13․Ms Bindon noted that there have been cases in which the Court has dispensed with the strict requirements for the joinder of parties, citing the example of the decision of Elkaim J in Italiano v McPherson [2021] ACTSC 214 applying the principles articulated by Brereton J in Boldi v Crozier [2015] NSWSC 2155 at [2]-[4]. In Italiano at [16], Elkaim J joined the beneficiary of a will as a second defendant in proceedings for the reason that there was a pending mediation and the beneficiary needed to play a significant part in order to give the mediation “its best prospects”.
14․Whilst it may be accepted, having regard to those authorities, that the Court might have power to join a representative of the Ngunnawal people as a party to these proceedings, I am not persuaded that it is appropriate in light of the sensitivities to which I have referred. Nor is it necessary in the relevant sense. Ms Bindon's written submissions referred to the following authorities: Commissioner for Fair Trading v Bowes Street Developments Pty Ltd [2021] ACTSC 282 at [22]; News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; 64 FCR 410 at 524; Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55-56. Applying the test in Pegang here, a declaration in the terms sought by the plaintiffs would not directly affect the rights or liabilities of the Ngannawal people. There may be further political consequences but a declaration as to the human rights of persons identifying as Ngambri does not affect the human rights of the Ngunnawal in a strict juridical sense.
15․The alternative relief sought, as I have indicated, is not opposed by the plaintiffs and, in my view, is appropriate. Ms Bindon's submissions set out the authorities which emphasise the caution with which the Court will itself call a witness, including the remarks of Gray and North JJ in Sharp v Rangott [2008] FCAFC 45; 167 FSR 225 at [3]:
The area of our departure from the reasoning of Besanko J is in relation to what his Honour identifies as the first ground of appeal, namely whether the federal magistrate himself should have called Ms Sharp as a witness, when neither counsel then appearing for the appellant nor counsel for the respondent had chosen to call her. It is clear that the federal magistrate had power to call a witness of his own motion. The power was expressed in r 15.04 of the Federal Magistrates Court Rules 2001 (Cth). Even in a case such as the present, in which the appellant did not contend that the express power was any broader than the common law power of a judge to call a witness not called by any party, we do not necessarily accept that the common law power is constrained by the principle that Besanko J derives from the earlier authorities. In an age in which the focus of common law courts on ascertaining the truth is increasing, and the gap between the approaches of the common law courts and the “inquisitorial” courts of the Roman law/Napoleonic systems is perceived to be much narrower than previously supposed, we prefer not to express a view that would anchor the exercise of the discretionary power in the particular view of the adversarial system identified by his Honour.
16․Plainly, the Court should exercise caution in taking a course which might be perceived to be inconsistent with its role as an impartial arbiter of the matters raised by the application. In the present case, I think there is a proper basis for the Court to take that exceptional course. These proceedings have their best prospect of reaching a conclusion which is both legally robust and which will earn the respect of all members of the community if the Ngunnawal people’s voice is heard. I propose for those reasons to grant the alternative relief sought in order 2 of the application in proceedings.
17․I indicate, as I stated during argument on this application, that I would also entertain any application by Ms Brown to make closing submissions in the proceedings and to be heard as to the relief that might be granted by the Court.
18․Finally, I note that I have foreshadowed with the parties and Ms Brown the possibility that part of the hearing may be conducted in the more informal setting of a circle at which all persons having an interest (in the broader sense) in the proceedings might participate in respectful discourse concerning the issues in the proceedings and, in particular, the issues raised by the evidence of the plaintiffs' expert, Dr Ed Wensing, and any expert Ms Brown might seek to put forward.
19․For those reasons, I make the following orders:
(1) That Roslyn Myra Brown and, subject to the approval of the Court, any other person nominated by her, be called as the Court’s own witness in this matter subject to the following conditions:
(a) The evidence to be given by Roslyn Myra Brown, and any other person nominated by her and approved by the Court, be confined to such issues as are determined to be appropriate by the Court, after hearing from the parties;
(b) The plaintiffs’ counsel and the defendants’ counsel be afforded the right to cross-examine Roslyn Myra Brown, and any other person nominated by her and approved by the Court, subject to any orders the Court considers just.
(2) Indicate that if Ms Brown wishes to rely on any evidence in the proceedings, the affidavits relied on and any expert report should be served by 16 February 2023.
(3) List the matter for directions before McCallum CJ at 9am on Friday 17 February 2023.
(4) That the costs of today’s application be costs in the cause.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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