Taylor v Yamanda Aboriginal Association Inc
[2016] FCCA 1298
•23 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAYLOR v YAMANDA ABORIGINAL ASSOCIATION INC & ANOR | [2016] FCCA 1298 |
| Catchwords: HUMAN RIGHTS – Racial discrimination – applicant receiving a certificate of Aboriginality which was later rescinded – oral and written statements subsequently made that the applicant was not accepted as an Aboriginal – whether the impugned acts were done because of the applicant’s race, or a reason that included her race, considered – whether the impugned conduct has had the effect of nullifying or impairing the applicant’s rights considered – observations on the difficulties associated with the concept of acceptance by the Aboriginal Community as an Aboriginal person. |
| Legislation: Aboriginal Land Rights Act 1983 (NSW) s.4 Australian Human Rights Commission Act 1986 (Cth) s.46PH Racial Discrimination Act 1975(Cth), ss.8, 9, 18 |
| Cases cited: Re Simon [2006] NSWSC1410 Shaw v Wolf (1998) 83 FCR 113 Vata-Meyer v Commonwealth [2015] FCAFC 139 |
| Applicant: | ELIZABETH ANN TAYLOR |
| First Respondent: | YAMANDA ABORIGINAL ASSOCIATION INC |
| Second Respondent: | MOYENGULLY NATURAL RESOURCE MANAGEMENT AND LAND CARE GROUP |
| File Number: | SYG 737 of 2014 |
| Judgment of: | Judge Driver |
| Hearing dates: | 7-9 March 2016 |
| Date of Last Submission: | 15 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Avery-Williams |
| Solicitors for the Applicant: | Stacks The Law Firm |
| Counsel for the Respondent: | Ms D Dinnen |
| Solicitors for the Respondent: | Lander & Rodgers |
ORDERS
The application as amended on 10 September 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 737 of 2014
| ELIZABETH ANN TAYLOR |
Applicant
And
| YAMANDA ABORIGINAL ASSOCIATION INC |
First Respondent
| MOYENGULLY NATURAL RESOURCE MANAGEMENT AND LAND CARE GROUP |
Second Respondent
REASONS FOR JUDGMENT
On 23 May 2010 Robert Simpson walked into a well attended meeting at the Wingecarribee Aboriginal Community Centre in the Old Court House in Bowral. He took with him some photographs of relatives and a family tree. Some time later on the same day he emerged with confirmation of Aboriginality certificates for himself and other members of his family, including his daughter Elizabeth. Two years later, following disagreements within the Aboriginal Community, the certificates were all rescinded. The applicant (Ms Taylor) is aggrieved that the respondents rescinded her certificate of Aboriginality and treated her as a non-Aboriginal person.
On 2 July 2013 the Australian Human Rights Commission accepted a complaint made by Ms Taylor, alleging discrimination on the ground of her race as an Australian Aboriginal. A Notice of Termination was issued on 21 January 2014 pursuant to s.46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth). These proceedings commenced on 21 March 2014.
Ms Taylor alleges breaches of s.9 of the Racial Discrimination Act 1975 (Cth) (RDA) by the first respondent, Yamanda Aboriginal Association Inc (Yamanda) and the second respondent, Moyengully Natural Resource Management and Land Care Group (Moyengully).
An amended application was filed on 10 September 2015. In response the respondents filed an Application in a Case seeking costs resulting from the amended application. This issue as to costs was conceded by Ms Taylor at the trial and I made orders on 9 March 2016 pursuant to rule 21.02 of the Federal Circuit Court Rules 2001 (Cth) for Ms Taylor to pay the respondents’ costs thrown away by reason of the filing of the amended application.
Background
Ms Taylor’s father, Mr Simpson, applied for a Confirmation of Aboriginality Certificate (certificate) on his own behalf and that of Ms Taylor and other members of Mr Simpson’s family on 23 May 2010 at an ordinary meeting of Yamanda. Both Ms Taylor and Mr Simpson were issued with a certificate on that date, along with other members of their family.
Sometime in 2011 Mr Simpson was elected President of Yamanda.
On 18 April 2011 Ms Taylor commenced a one year contract as the Aboriginal Cultural Centre Coordinator at the Guthawah Aboriginal Cultural Centre, an Aboriginal identified position.
On 20 May 2012 at a committee meeting of Yamanda a no confidence motion was passed against the Treasurer Ms Eileen Warren (Auntie Annie).[1] Mr Simpson was appointed acting Treasurer at that same meeting. Following this meeting there was a dispute over the validity of the committee’s no confidence vote because ineligible people were said to have voted. This resulted in the vote being declared invalid. Following this dispute a majority of the committee members resigned, including Mr Simpson.
[1] Historically, in Aboriginal English the word “Auntie” is used as a term of respect for a mature age female (see the Macquarie Dictionary, third edition). The spelling “Aunty” is increasingly common, consistently with standard Australian English (see the online Macquarie Dictionary) but I have used the traditional spelling for simplicity and consistency.
On 13 June 2012 the Families Sharing Culture Aboriginal Corporation was registered with Ms Taylor and Mr Simpson among the directors of the Corporation.
On 17 July 2012 a community meeting was held at the Wingecarribee Aboriginal Centre in Mittagong. Community members present at the meeting voted to rescind the certificate of Ms Taylor and also the certificates issued to other members of her family. The community members present at that meeting provided statutory declarations that state they do not accept Ms Taylor or her family as Aboriginal.
On 17 July 2012 a letter on Yamanda letterhead was sent to Ms Taylor and her children stating that their certificates had been rescinded on the basis that the family “provided no evidence of [their] heritage claims” and that services providers in the Wingecarribee area would be notified of the rescission of their certificates.
At a meeting on 30 January 2014 at the Aboriginal Cultural Centre in Mittagong to re-establish the local branch of the Aboriginal Education Consultative Group (AECG) Ms Taylor was nominated for the position of President and elected as Vice-President.
On 7 November 2014 at the annual general meeting of AECG there was a confrontation between Ms Taylor, Mr Simpson and community members. Following this confrontation Ms Taylor left the meeting and resigned her position.
At a meeting between representatives from the Department of Premier and Cabinet and other organisations including Families Sharing Culture Aboriginal Organisation, of which Ms Taylor is a Director, in May 2013, Auntie Annie stated that Ms Taylor was not Aboriginal.
In 2015 Mr Simpson became a member of the Illawarra Aboriginal Land Council.
Grounds of the application
Ms Taylor’s claims can be summarised as follows.
The conduct of Yamanda in passing the motion to rescind the certificate was based on Ms Taylor’s race, within the meaning of s.9(1) of the RDA.
In the alternative, the conduct of Yamanda in passing the motion to rescind the certificate was an act done for two reasons as provided for in s.18 of the RDA, one reason being a personal conflict between Ms Taylor, her father and the Treasurer of Yamanda, Auntie Annie, and the other being the reason of Ms Taylor’s race.
The letter dated 17 July 2012 circulated to all service providers that service the Wingebarribee Shire area and the schools that Ms Taylor’s children attend, advised that Ms Taylor’s certificate and those of her family had been rescinded. This letter was signed by Eleanor McIlwain, Marie Barbaric and Auntie Annie as Treasurer of Yamanda. The conduct of Yamanda in circulating that letter to service providers was based on Ms Taylor’s race, within the meaning of s.9(1) of the RDA.
In the alternative, the conduct of Yamanda in circulating that letter to service providers was an act done for two reasons as provided for in s.18 of the RDA, one reason being a personal conflict between Auntie Annie and Ms Taylor (and her father) and the other being the reason of Ms Taylor’s race.
The conduct of Moyengully in providing statutory declarations of two of its officers, dated 17 July 2012 was based on the Ms Taylor’s race, within the meaning of s.9(1) of the RDA.
In May 2013, Auntie Annie stated in a meeting between Families Sharing Culture Aboriginal Corporation and the Department of Premier and Cabinet that Ms Taylor was not Aboriginal. These remarks were made in Auntie Annie’s capacity as Treasurer of Yamanda and as an agent or employee of Yamanda. The remarks were based on Ms Taylor’s race.
The conduct of the respondents as set out above had the purpose of nullifying and/or impairing the recognition, enjoyment and/or exercise on an equal footing of Ms Taylor’s right to nationality as an Indigenous Australian.
I note that in the statement of claim filed 9 October 2015, the rights alleged to have been impaired also included the rights to:
a)equal participation in cultural activities;
b)education and training;
c)work, free choice of employment and protection against unemployment.
Respondents position
The respondents ask that the Court dismiss Ms Taylor’s amended application. Their position can be summarised as follows:
a)Ms Taylor has failed to provide sufficient evidence to substantiate her claim of race discrimination against either of the respondents;
b)Ms Taylor has not established on the evidence the criteria for race discrimination, including by reference to the correct comparator;
c)Yamanda has not engaged in race discrimination by issuing and subsequently revoking the certificate in accordance with the Aboriginal Land Rights Act 1983 (NSW) (Land Rights Act);
d)Moyengully should not be a party to the proceedings as it did not have any power to issue or revoke the certificate;
e)Ms Taylor has failed to provide sufficient evidence of economic loss and has failed to mitigate any such loss;
f)Ms Taylor has failed to provide sufficient evidence of non-economic loss or any other form of damages.
The evidence
In addition to the pleadings, Ms Taylor relies on:
a)her affidavits made on 20 November 2015 and 5 February 2016;
b)an affidavit of Robert Simpson made on 5 February 2016;
c)an affidavit of Catherine Olofsen made on 4 February 2016;
d)an affidavit of Christine Simpson made on 5 February 2016;
e)an affidavit of Lesley Anne Markovina made on 20 November 2015;
f)an affidavit of Linda Jane Burgess made on 5 February 2016;
g)an affidavit of Melanie Angwin made on 5 February 2016, and;
h)an affidavit of Peter Pankhurst made on 7 February 2016.
The respondents rely on the following, in addition to the pleadings:
a)an affidavit of Eileen Warren made on 14 December 2015;
b)an affidavit of Velma Mulcahy made on 15 December 2015;
c)an affidavit of Robyn Young made on 15 December 2015, and;
d)an affidavit of Joanne Albany made on 23 January 2016.
I also have before me as evidence an applicant’s tender bundle and a respondents’ tender bundle.
Consideration
Who is an “Aboriginal person” – the Land Rights Act criteria
The determination of Aboriginality is often a sensitive and difficult question. Aboriginality may not be capable of any single satisfactory definition.[2] However, a number of laws have been enacted and state services introduced for the sole benefit of Aboriginal persons and as a result some criteria are necessary to determine who is Aboriginal. Section 4 of the Land Rights Act defines an Aboriginal person as a person who:
a)is a member of the Aboriginal race of Australia;
b)identifies as an Aboriginal person, and;
c)is accepted by the Aboriginal community as an Aboriginal person.
[2] Commonwealth legislation typically defines an Aboriginal as a person of the Aboriginal race of Australia but does not attempt to define who is a member of that race.
Yamanda relies on the definition in the Land Rights Act to determine whether a certificate should be issued. In this case, there is dispute as to whether Ms Taylor is a member of the Aboriginal race of Australia. Yamanda cited lack of evidence of Aboriginal heritage in its letter informing Ms Taylor of the rescission of her certificate. Secondly, there is dispute whether Ms Taylor was accepted by the Aboriginal community as an Aboriginal person. The rescission of the certificate was supported by statutory declarations that the community does not accept Ms Taylor as Aboriginal.
It is also pertinent to note that both Ms Taylor and her father gave oral evidence that they did not identify as Aboriginal until the day they received their certificates from Yamanda. In effect, they did not identify as Aboriginal until they had confirmation from an Aboriginal Elder and through the issuing of the certificates, confirming that they were Aboriginal. This highlights that self-identification interacts with and can be the result of community recognition or acceptance. Thus the complexity in applying the Land Rights Act definition is compounded, given that each element in the definition is interrelated.
Based on the evidence it is questionable whether Yamanda employed a robust process to determine whether the relevant criteria for a certificate had been met, either on issuing the certificates or rescinding them. There may be an issue as to whether any certificate was validly issued or rescinded, however that issue has not been argued before the Court. I will proceed on the basis that Ms Taylor’s certificate was validly issued and rescinded.
The issue of the determination of Aboriginality was addressed in Shaw v Wolf[3] which was helpfully summarised by Campbell J of the NSW Supreme Court in Re Simon [4] at [23] and [24], which Merkel J had himself employed at [118] in Shaw v Wolf. In particular, Merkel J noted that “some degree” of Aboriginal descent is a necessary but not sufficient condition of eligibility to be an Aboriginal person[5] and that a small degree of Aboriginal descent, coupled with genuine self-identification or with community recognition may, in a given case, be sufficient for eligibility.[6]Significantly, Merkel J[7] concluded that community recognition as an Aboriginal person may, given the difficulties of proof of Aboriginal descent flowing from, among other things, the lack of written family records, often be the best evidence available of the proof of Aboriginal descent. In the present case that recognition was critical for Ms Taylor and her family.
[3] (1998) 83 FCR 113
[4] [2006] NSWSC1410
[5] At 508
[6] At 510 – 512
[7] At 512
Aboriginal community
A difficulty with the Land Rights Act requirement that a person be accepted by the Aboriginal community as an Aboriginal person is that it assumes a community can be defined and its opinions clearly and unequivocally expressed. The Land Rights Act definition speaks of “the Aboriginal community” as it if were a single entity, at least in the state of New South Wales. The reality is, in my opinion, quite different.
In Shaw v Wolf Merkel J considered the issue of communal recognition in detail, albeit in relation to different legislation. Justice Merkel noted:[8]
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…
…The relevant community might be the general Aboriginal community in a 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.
[8] At 122
Yamanda is not in my opinion an Aboriginal community in and of itself. Rather, it is an organisation within the Wingecarribee Aboriginal community and hence at least in part representative of that community. This raises the issue then as to whether Yamanda can act on behalf of the Wingecarribee Aboriginal community when it issues or rescinds a certificate. While the exact numbers are unknown, the number of Aboriginals in the Wingecarribee community was estimated by witnesses to be over 1000 people.
Regarding the issuing of the certificates of Aboriginality, and therefore the determination of the presence of all three elements of the definition in the Land Rights Act relied on by Yamanda, the evidence suggest that while multiple committee members sign off on the issuing of a certificate of Aboriginality, in reality the decision to issue certificates to Ms Taylor and her family was essentially determined by Ms Velma Malchahy (Auntie Val), a very senior respected Aboriginal Elder and committee member of Yamanda.[9] Therefore in this case a single Aboriginal Elder ostensibly on behalf of the whole community was effectively determining community acceptance.
[9] Transcript 8 March 2016, p.108 35-45;p.109, 1-35; 9 March 2016, p.184, 40 to 185, 21; p.211, 20 – 30
The rescission of the certificates took place at what all the witnesses agreed was a community meeting. The minutes of the meeting were on Yamanda letterhead and 10 people were present at the meeting: Auntie Annie, Marie Barbaric, Rena Logan, Barbara Brennan, Steve Logan, Raymond Stevenson, Robyn Young, Eleanor McIlwain, Lee Thompson and Naomi Thompson.[10] Auntie Val was notably absent.
[10] See exhibit ET4 in Ms Taylor’s affidavit made on 20 November 2015 and Transcript, 9 March 2016, 223
While these people may be prominent members of their Aboriginal community, the circumstances surrounding the issuing and rescinding of Ms Taylor’s and her family’s certificates of Aboriginality illustrate the difficulty in placing weight on the opinions of individual persons as to whether they accept or do not accept a particular person in the community as being Aboriginal. Such opinions can be based on highly subjective personal, social and political reasons and may vary from person to person. In this matter Auntie Val, a respected Elder of the Wingecarribee Aboriginal community, gave candid evidence under cross-examination that she accepted Ms Taylor and her family as Aboriginal and if she had been at the second meeting the certificates would not have been rescinded.[11] By contrast Auntie Annie, another respected Elder of the Wingecarribee Aboriginal community, takes the opposite position. Such division within the community poses a significant obstacle for anyone attempting to satisfy the Yamanda criteria.
[11] Transcript, 9 March 2016, p.200, 13-19
A further obstacle is the possibility for the concept of community acceptance to be based upon a confused understanding of what is being accepted or denied. It is one thing for the community to accept a person as Aboriginal; it is a separate notion to accept the person themselves as welcome in the community. Refusing community acceptance as an act of social ostracism to express disapproval of certain conduct is at issue in this case. The alleged community concern may not have stemmed from a lack of acceptance of Ms Taylor and her family as Aboriginal, but rather from the position Mr Simpson held at Renwick Boys Home, an institution associated with the stolen generation.
If, for example, a person’s conduct offends the community, that will have an impact on whether that person remains welcome as a member of that community. However, it should not have any bearing on the community’s ability to continue to acknowledge that person’s race. In this matter it appears some community members may have conflated these two notions.
While it is not appropriate or necessary for me to make a finding on whether Ms Taylor and her family are or are not Aboriginal persons, this case illustrates the difficulties in determining Aboriginality in general and community acceptance as an element thereof and the need for guidance as to how Aboriginal organisations should determine who is accepted as an Aboriginal person.
Claims against Yamanda
It is undisputed evidence that between the period of 23 May 2010, when the certificate was issued, and 17 July 2012, when the certificate was revoked, Ms Taylor was recognised as an Aboriginal person with a certificate.
It would therefore seem illogical that Ms Taylor can be Aboriginal for two years and then not be. She either was always Aboriginal or she was never Aboriginal. I do not accept Yamanda’s argument that Ms Taylor received the certificate on a conditional or provisional basis. The certificate was not expressed to be limited in any such way. The positions within the Aboriginal community later afforded to Ms Taylor and Mr Simpson, as an employee (as selected by members of Yamanda) in an Aboriginal identified position and as president of Yamanda respectively, demonstrate an acceptance by Yamanda that Ms Taylor, Mr Simpson and the rest of their family had unconditionally received certificates. They are not the actions of someone waiting to receive further proof of Aboriginal heritage. Most significantly, Auntie Val, an Aboriginal Elder and Yamanda’s public officer who issued the certificates, gave candid oral evidence that the certificates had been issued without condition in good faith.[12] I accept her evidence.
[12] Transcript, 9 March 2016, p. 191, 20-25
It seems to me that the reasons proffered by Yamanda for the acts impugned in these proceedings conceal the truth. In my view, the acts of rescinding the certificate, notifying services and commenting at the May 2013 meeting were a result of interpersonal conflict between Ms Taylor (and her father) and Auntie Annie, who had the support of some other community members.
Ms Taylor and her family have a history of conflict with Auntie Annie. There was a dispute between Auntie Annie and Mr Simpson over how Yamanda’s funds were handled, which culminated in the no confidence vote. There was allegedly conflict between Auntie Annie and Ms Taylor’s mother, Mrs Simpson, which lead to further conflict between Ms Taylor and Auntie Annie. Further, Ms Taylor has had a personal injury claim settled for her benefit due to alleged harassment by Auntie Annie while working at Wingecarribee Community Services.
If the reason for the impugned acts was interpersonal conflict rather than a failure to satisfy the Land Rights Act definition, then those acts cannot amount to discrimination, as they are not a distinction based on race; rather they are a distinction based on an interpersonal conflict. As such the requirements of s.9 of the RDA would not be made out.
Ms Taylor submits that, in the alternative, the respondents breached s.9 of the RDA as the acts were done for two reasons, one being a personal conflict between Auntie Annie and Ms Taylor and the other reason being Ms Taylor’s race. Section 18 of the RDA states an act can be done for two or more reasons and if one of these is race, then the act will be taken to be based on race.
I do not accept that the issue of whether Ms Taylor is a member of the Aboriginal race of Australia was the main basis for the rescission of the certificate. It was, however, an element of it in the minds of those responsible for the rescission. The notification of rescission states the reason for rescission is because “your family have provided no evidence of your heritage claims”. As I do not accept that the certificate was issued conditionally, I therefore accept that all the criteria for a certificate, including proof of heritage, were taken to have been satisfied. I do not accept that there remained objectively an issue whether Ms Taylor fulfilled the requirements to be accepted by the community as an Aboriginal. However, I accept that the issue of community acceptance remained subjectively in the minds of some community members. Ms Taylor was not accepted by some members of the community because they feel insufficient proof of Aboriginal heritage had been provided in the first instance. In other words, the required act of community acceptance was disputed by some members of the community.
The three acts of alleged discrimination were in my opinion partly based on the perceived failure of Ms Taylor to satisfy the Land Rights Act definition, which was relied on by Yamanda in issuing certificates. In particular, the rescission and the statements associated with it were based in part on the proposition that Ms Taylor was no longer accepted by the community as Aboriginal. In that regard, I accept that a certificate may be capable of being rescinded even if issued unconditionally. A certificate may hypothetically be issued in error, or even fraudulently, and new material may lead a community to the view that a certificate should be rescinded.
However, even if these acts were in part based on the perceived failure of Ms Taylor to satisfy the Land Rights Act definition, in particular, that Ms Taylor was no longer accepted by the community as Aboriginal, while I accept the acts would be “based on” Ms Taylor’s race, nonetheless the requirements of s.9 of the RDA are in my opinion still not made out.
Special measures
If the acts were done because Ms Taylor was taken to no longer meet the third criterion of the Land Rights Act definition then, as submitted by the respondents, this would amount to cancelling the benefit of a special measure, which is not unlawful under the RDA. As the certificate was evidence that all three criteria had been met and therefore Ms Taylor held an entitlement to special measures, the rescission of the certificate reflects Ms Taylor’s ineligibility for the special measures and, if she is not eligible, then the acts cannot have the effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing, of any human right or fundamental freedom.
Section 8(1) of the RDA provides that Pt II does not apply to, or in relation to the application of, "special measures to which paragraph 4 of Article 1 of the Convention applies". Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination excludes special measures from the definition of "racial discrimination" in Art 1(1):
Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
The issuing of certificates is a service provided by Yamanda which falls within the exclusion of “special measures” in s.8 of the RDA. The certificates allow access to special services for Aboriginals, as well as eligibility to apply for indigenous identified positions. Removing access to these benefits of a special measure on the basis of ineligibility is not discrimination under the RDA, as such special measures are designed to create advancement or protection for indigenous Australians to ensure their equal enjoyment or exercise of human rights and fundamental freedoms. Inability to access these services, where the person is not eligible, does not have the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom.
Similarly, the act of sending out the notice of cancellation to service providers was also incidental or related to these special measures, in particular to limit Ms Taylor’s access to special measures. The comments made by Auntie Annie fall into a different category. Under cross-examination Auntie Annie stated that the reason she made the comments in May 2013 was so that Families Sharing Culture, a corporation Ms Taylor is a director of, would not receive any more “Aboriginal money”. Auntie Annie may have been motivated by animosity but a simple statement that someone is not an Aboriginal is not necessarily discriminatory. No claim was made under s.18C of the RDA. If nevertheless the statement was made maliciously it would be necessary to consider whether any harm resulted from it.
Even if these acts did not fall within the exclusion of s.8 of the RDA (and I do not think that the statement by Auntie Annie did), the application would still fail as Ms Taylor has failed to demonstrate any of these acts had the effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
In this connection I have considered the decision of the Full Federal Court in Vata-Meyer v Commonwealth[13] in particular at [95] – [99]. I accept that racial discrimination may be suffered by a person who is simply affronted by words or actions giving rise to a strong sense of injustice. There is no doubt that Ms Taylor was affronted by the rescission of her certificate of Aboriginality and the words and actions associated with it. There is no doubt that Ms Taylor harbours a strong sense of injustice. Each case, however, must be considered in its factual context. Here the factual context was the debate within the Aboriginal community whether Mr Taylor and her family should continue to be accepted as members of the community. It was not a derogatory reflection on her race.
[13] [2015] FCAFC 139
I will consider each act separately below.
Rescission of certificate
Ms Taylor submits that the rescission of the certificate had impaired her rights to:
a)nationality as an indigenous Australian;
b)equal participation in cultural activities,
c)education and training and,
d)work, with free choice of employment and protection against unemployment.
The grant of a certificate is not generally determinative of whether a person is a member of the Aboriginal race of Australia, although it was very important for Ms Taylor. Further, it is not necessary for an Aboriginal to obtain a certificate, nor does the certificate govern whether an individual can self-identify as an Aboriginal or be accepted by a community as Aboriginal. Moreover, Ms Taylor gave evidence that she continues to self-identify as Aboriginal and that her children are identified at their school as Aboriginal. It follows that Ms Taylor has not made out that her right to benefit as an Aboriginal has been impaired.
Nor has Ms Taylor made out any impairment to her right to equal participation in cultural activities. In cross-examination Ms Taylor admitted that she still attended NAIDOC celebration activities. Moreover she acknowledged that attending the Wingecarribee cultural centre and other cultural events did not require a certificate to attend. I agree with the submissions of the respondents that it was not the rescission of Ms Taylor’s certificate, but the ill feeling Ms Taylor feared she would experience at these activities that stopped her from attending.[14] Ms Taylor has not provided any evidence of exclusion from cultural activities.
[14] Transcript, 7 March 2016, p.53, 7-45; p76, 37
Ms Taylor argued that her right to education has been impaired as she was temporarily unable to receive her certificate for the course she was attending at Illawarra ITEC because she did not have a certificate of Aboriginality. However Ms Taylor has since received her qualification from Illawarra ITEC and has provided no other evidence of any impact on her right to an education. Given Ms Taylor did in fact receive her qualification, she has not made out that her right to education has been impaired.
Ms Taylor’s right to work is also alleged to have been impaired. In particular Ms Taylor submits that she was unable to apply for Aboriginal identified positions and in particular that she did not receive a position with Highlands Community Centre because she did not have a certificate of Aboriginality. There are two problems with this submission.
First, access to Aboriginal identified positions falls within the exclusion in s.8 of the RDA. Secondly, Ms Taylor has not provided any persuasive evidence that her right to work has been impaired. I note that the position at Highlands Community Centre did not require a certificate, but that a certificate was considered an advantage. Further, no evidence was submitted that the reason Ms Taylor did not receive the position was because she did not have a certificate. There is no reliable evidence proffered by Ms Taylor as to applications she has made and/or the impact that not having a certificate has had on her applications.
Ms Taylor’s failure to provide evidence of impairment to the aforementioned rights is compounded by her failure to seek another certificate. Yamanda is not the only Aboriginal organisation that can award certificates. In 2015 Mr Simpson became a member of the Illawarra Aboriginal Land Council. To become a member an applicant must meet the three criteria of the Land Rights Act definition. The Illawarra Aboriginal Land Council does not issue certificates or letters that confirm Aboriginality; instead membership of the Illawarra Aboriginal Land Council serves the same purpose.
Ms Taylor has not applied to another organisation for a certificate which would have allowed her access to services and Aboriginal identified positions she claims she no longer can access. Ms Taylor said in cross-examination this was because of the embarrassment that she had suffered.
Distribution of letter to service providers
Ms Taylor submits that the conduct of Yamanda in distributing its letter to service providers had the purpose of nullifying or impairing the recognition, enjoyment or exercise on an equal footing Ms Taylor’s rights to:
a)nationality as an indigenous Australian;
b)equal participation in cultural activities,
c)education and training; and
d)work, with free choice of employment and protection against unemployment.
It is in dispute whether the letters were sent out to service providers. The letter sent to Ms Taylor included a letter addressed to service provides informing them of the rescission of the certificate. This shows an intention, at the very least, for that letter to be sent to service providers. However no evidence of receipt of the letter by service providers was proffered. I note that the defence filed on 21 March 2014 states:
…the letter was sent to service providers who were providing funding to FSACC, on the basis of its purported Aboriginal descent as an Aboriginal Incorporated Association… This action was taken by the First Respondent on account of its close relationship with those service providers within the local community.
At the hearing counsel for the respondents raised that while the points of defence state that such letters were issued, the evidence from each of the respondent’s witnesses would be that they did not know whether the letters were sent or that the letters were not sent. While the respondents could not re-plead on the issue, the evidence given by the respondents did not support the pleading.
There is evidence before the Court that letters were prepared with the intention of them being sent to service providers, however no witnesses can say reliably that they were or were not sent.
Hypothetically, accepting that the letter was sent, there is nonetheless no evidence to suggest that Ms Taylor’s enjoyment on an equal footing of the rights discussed above has been impaired or nullified, and thus this ground must fail.
While I do not doubt that Ms Taylor may have suffered embarrassment if such a letter was sent to local service providers, this of itself does not amount to an impairment of a right.
As with the act of the rescission of the certificate, there is no evidence to support Ms Taylor’s submission that any of the alleged rights have been impaired. Therefore this act does not breach s.9 of the RDA.
Comments in May 2013
Ms Taylor submits that the comments made by Auntie Annie at the May 2013 meeting had the purpose of impairing the enjoyment or exercise on an equal footing her right to equal participation in cultural activities and to nationality as an indigenous Australian.
The comments made by Auntie Annie were that Ms Taylor’s family name is British, or Irish, or Scottish and that she cannot be Aboriginal.[15]
[15] Transcript, Wednesday, 9 March 2016, p229, 34 - 37
Auntie Annie accepted in cross-examination, that she made the comments so that Families Sharing Culture would not get any more “Aboriginal money”.[16] Ms Taylor submits that it follows that this act had the purpose of impairing her rights to nationality as an Aboriginal and to participation in cultural activities. I am not convinced by this argument.
[16] Transcript, Wednesday, 9 March 2016, p299, 39-45
Such comments as those made by Auntie Annie may hypothetically amount to racial vilification however, this has not been alleged. Moreover the comments made by Auntie Annie had very limited impact. Auntie Annie is entitled to an opinion and to point out that there is a dispute in the community as to Ms Taylor’s ability to fulfil the first element of the Land Rights Act definition. Expressing an opinion at a meeting for local decision making for Aboriginal communities in the context of wider community debate regarding a person’s Aboriginality is not in my opinion discriminatory.
Auntie Annie said that her comments were made for the purpose of impairing Ms Taylor’s ability to access funding for Aboriginal organisations. While the purpose of the comments does not of itself immunise her against potential liability, where there is discussion about eligibility for such funding logically there has to be a way for interested parties to debate this without breaching the RDA.
Additionally, there is no evidence that these comments have impacted adversely on Families Sharing Culture, and through this organisation, on Ms Taylor personally, Ms Taylor continues to participate in cultural activities, continues to self-identify as Aboriginal and she continues to be accepted by at least part of the Aboriginal community.[17] Therefore a breach of s.9 of the RDA has not been made out.
[17] Transcript, Wednesday, 7 March 2016, p60, 39-47
Claims against Moyengully
Ms Taylor claims that Moyengully has breached s.9 of the RDA by two of its members providing statutory declarations stating that Ms Taylor is not accepted by them as an Aboriginal. In particular Ms Taylor submits in her Amended Application:
42C.The conduct of the Second Respondent in providing Statutory Declarations of two of its officers dated 17 July 2012 was based on the Applicant’s race within the meaning of section 9(1) of the Racial Discrimination Act 1975 (Cth).
42D. The Conduct of the Respondents Yamanda and Moyengully as set out above had the purpose of nullifying and/or impairing the recognition, enjoyment and/or exercise of an equal footing of the Applicant’s right to nationality as an Indigenous Australian.
Moyengully submits it has been improperly joined as a party to the proceedings, I reject that submission. The two community representatives who made the statutory declarations were purportedly representing Moyengully.
Accepting that the statutory declarations were made to support the decision to rescind the certificate, nevertheless the claims against Moyengully must also fail. The Land Rights Act definition includes acceptance by the Aboriginal community. It is not in dispute that Moyengully is an organisation that is part of the Aboriginal community in the Wingecarribee Shire.
Given that the statutory declarations were provided at a meeting where a decision was made to rescind Ms Taylor’s certificate, I am willing to accept that a purpose for providing the statutory declarations was supporting the determination, by Yamanda, that Ms Taylor did not meet the requirements of the Land Rights Act, in particular that Ms Taylor was not accepted by the community as an Aboriginal.
It follows that while the act was probably in part based on Ms Taylor’s race, as already canvassed, there is no evidence Ms Taylor’s enjoyment or exercise of her right to nationality has been impaired.
Moreover, certificates are documentary proof that the Land Rights Act criteria have been applied and met for the purpose of an individual accessing special measures, such as government services, which comes within the meaning of s.8 of the RDA.
As a general principle, it is illogical that statements from the community for the purpose of determining a criterion under the Land Rights Act definition, that requires an assessment of the community’s attitude, would amount to discrimination and a breach under s.9 of the RDA. Otherwise it would be impossible to make a determination as to whether the Land Rights Act definition had been met.
Expressing an opinion bona fide, whether in the form of a statutory declaration or otherwise is not discriminatory in these circumstances. There logically has to be a way for the community to debate the issue of a person’s race for the purpose of determining whether the community accepts the person as Aboriginal.
It follows that the claims against Moyengully have not been made out.
Conclusion
Establishing Aboriginality is in theory simple but in practice can be a vexed process. Some clarity is needed regarding who represents people within the Aboriginal community and how decisions are made which afford the opportunity for community debate. The process should be made more transparent to ensure the decision making is properly focused and not influenced by personality. For example, community acceptance should be based on acceptance of a person as Aboriginal, rather than the approval of that person generally. Likewise, where a person is accepted as a member of the Aboriginal community in good faith they should not be exposed to challenge later on for some idiosyncratic reason.
It is necessary that a decision to award or rescind a certificate of Aboriginality be based on a person race. It is improbable that any discussions regarding an applicant’s race in relation to granting or rescinding a certificate or accessing special services should amount to discrimination. No discrimination is established in this case.
I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 23 September 2016