Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Melythina Tiakana Warrana (Heart of Country) Aboriginal Corporation 6 Before considering the parties' and proposed intervener's submissions, it is necessary to say a little more about mtwAC. The information that follows is taken from the statement of agreed facts and an affidavit of Nicholas Cameron, Chair of the Board of mtwAC, filed on 12 November 2020 and taken as read in support of the interlocutory application, although as I explain below parts of Mr Cameron's evidence were not conceded by the Minister. 7 mtwAC was founded in 2008. Mr Cameron deposes that its purposes at the time of its founding, and, I infer, today, include: (a) bring[ing] together and represent[ing] direct descendants of the Aboriginal Ancestors from the north-east region of Tasmania; (b) conduct[ing] research into our history; (c) maintain[ing] and reviv[ing] our cultural practices; (d) car[ing] for our Country; and (e) reconnect[ing] with and support[ing] Aboriginal people who had been lost to the community or who had otherwise been denied their Aboriginality. 8 To this end, its activities include organising an annual celebration called Mannalargenna Day, named after a warrior and chief from eastern Tasmania, at which the Aboriginal community is able to learn about and celebrate local Aboriginal culture, connection to country, and significant Aboriginal people in Tasmania's history through cultural performances and dances, workshops, food, walks, tours, storytelling and discovery sessions. 9 As just stated, the purposes include reviving cultural practices and reconnecting with Aboriginal people. This assumes particular significance when the history of the treatment of Aboriginal people in Tasmania is considered. Mr Cameron's evidence is that Tasmanian Aboriginals have survived invasion, warfare, displacement, dispossession, and being exiled from our homelands during colonial times, and our original population in 1803 of about 20,000 (as estimated by Henry Melville) was decimated to about 11 women, from whom about 25,000 of us are descendants. 10 Mr Cameron's evidence is that, for this reason, the ability to reconnect with and support people who (like Mr Helmbright) may have previously been lost to or stolen from the community to learn about and practice our culture, or who had otherwise been denied their Aboriginality, is absolutely critical to the preservation of our culture and connections in modern society. 11 I note that the Minister submits this evidence goes far beyond what is contained in the statement of agreed facts and will require further consideration if mtwAC is granted leave to intervene. I have taken the Minister's position into account, and simply refer to Mr Cameron's evidence here for context and background. 12 mtwAC is governed by a Board of Directors. It also has an informal "Circle of Elders" which is consulted by the Board from time to time. It is a member organisation of the Tasmanian Regional Aboriginal Communities Alliance, which recognises mtwAC as the organisation representing the interests of indigenous persons from north-eastern Tasmania. mtwAC is also recognised by the Tasmanian Office of Aboriginal Affairs as an organisation capable of recognising people as Aboriginal for the purpose of special programs and services provided by the Tasmanian government. 13 Anyone wishing to join mtwAC must submit an application and must satisfy the Board that they are descended from a member of a clan living in north-eastern Tasmania at about the time of first European settlement. They must also be sponsored by two current members of mtwAC. Any application that is received is considered at the next Board meeting. The Board decides whether to accept the application but also consults with any member of the Circle of Elders who is present at the meeting.

mtwAC 14 mtwAC relies on Mr Cameron's affidavit and written submissions filed on 12 November 2020 and 11 December 2020. 15 mtwAC submits that it has a direct and substantial interest in the outcome of the proceeding because: (a) the outcome will affect "its authority and autonomy to recognise members as Aboriginal Australians for the purposes of the Constitution"; and (b) in circumstances where the High Court has left open the possibility that a test other than the tripartite test adopted in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 might be used to determine whether a person is a non-alien Aboriginal Australian, it has an interest in ensuring that the law takes account of Tasmania's unique history, in particular "the egregious historical treatment of Tasmania's Aboriginal population". 16 mtwAC submits that its contribution will be useful and different from that of the parties because the mtwAC Board and Circle of Elders have significant cultural and historical knowledge about the treatment of Tasmania's Aboriginal population, present-day Aboriginal culture, and the likely effect of the Court's decision on the mtwAC community. 17 mtwAC submits that its intervention will not unreasonably interfere with the proceeding because its contribution can be programmed within the existing timetable and, so far as the statement of agreed facts concerns mtwAC, it agrees with it. It confirms that the only additional evidence it will seek to rely on is in the Cameron affidavit.

Mr Helmbright 18 Mr Helmbright submits that mtwAC should be granted leave to intervene because it is an appropriate and necessary party for the resolution of two key issues in the proceeding: first, whether satisfaction of the tripartite test articulated by Deane J in Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1 (Tasmanian Dam Case) is sufficient to establish that a person is a non-alien Aboriginal Australian for the purposes of s 51(xix) of the Constitution; second, whether mtwAC's recognition of him is sufficient to satisfy the third limb of that test. 19 Mr Helmbright submits that the determination of these issues will affect mtwAC as well as the broader population of Aboriginal Australians in Tasmania, but he does not have the authority to represent mtwAC or that broader population, nor does he purport to do so. Mr Helmbright submits that the Minister is effectively seeking "findings adverse to mtwAC" and that mtwAC ought to be heard as a matter of procedural fairness. He also submits that mtwAC has knowledge that he does not have which may be relevant to its ability in law to recognise him as a non-alien Aboriginal Australian.

The Minister 20 The Minister relies on an affidavit of Melinda Jackson, the lawyer with carriage of the proceeding on behalf of the Minister, filed on 4 December 2020, and written submissions filed on the same day. 21 The Minister submits that mtwAC does not have a direct interest in the proceeding and therefore has no absolute right to intervene. 22 The Minister submits that the matters referred to in mtwAC's submissions described at [15] fall squarely within what the High Court has said in Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; 248 CLR 37 at [2] (extracted at [32] below) is insufficient to support intervention. The Minister submits that, in any event, there is nothing to suggest that mtwAC recognises its members for the purposes of the Constitution, and its own purposes can continue whatever the Court decides. 23 The Minister submits that mtwAC's intervention will in fact disrupt the proceeding, in particular because it seeks, first, to adduce new evidence that goes beyond what the parties have agreed in the statement of agreed facts, and second, to introduce an issue that goes beyond what the parties have tendered for the Court's determination. 24 The alleged new issue is contained in proposed submissions that mtwAC provided to Mr Helmbright and the Minister in anticipation of the Court's determination of its application. This is said to be whether Mr Helmbright is a non-alien Aboriginal Australian even if the tripartite test derived from Brennan J's reasons in Mabo (No 2) is applied, whereas the parties are said to have joined issue on whether this Court should apply the test articulated by Deane J in the Tasmanian Dam Case. The Minister submits that the statement of agreed facts was prepared on a basis different to that which is now presented by mtwAC. 25 As to the alleged new evidence, the Minister points to a number of paragraphs in Mr Cameron's affidavit which are said to travel beyond what was agreed in the statement of agreed facts. Examples include Mr Cameron's evidence about mtwAC's activities and the treatment of Aboriginal people in Tasmania. 26 The Minister also submits that mtwAC has delayed and shown a "lack of candour". It is in support of this submission that the Minister relies on Ms Jackson's affidavit. 27 The Minister submits that: (a) The parties have been engaged in a process of agreeing facts and narrowing the issues in dispute since August 2020. (b) No later than 30 September 2020, the Minister indicated he was deciding what to agree for the purpose of the statement of agreed facts, including as to mtwAC, with a view to limiting evidence additional to that of the applicant. (c) mtwAC delayed in filing its application, not doing so until after the statement of agreed facts had been settled and filed, in circumstances where the Minister submits the Court can infer that mtwAC was aware of the proceeding well in advance of this. (d) In correspondence between mtwAC and the Minister, and contrary to s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth), mtwAC failed to confirm at an early stage what evidence it intended to rely on; failed to respond to certain of the Minister's questions, such as when mtwAC became aware of the litigation; and failed to inform the Minister at an early stage that it intended to provide draft submissions (including to the Court, without leave). 28 The Minister submits that if mtwAC is granted leave to intervene, further consideration will need to be given to the statement of agreed facts, and it may not be possible to complete the hearing within the two days currently allocated in February 2021.

Resolution 29 In these reasons, I use the term "Aboriginal Australian" because it is the term used by all of the judgments in Love/Thoms. I accept it may not be considered appropriate by all, especially some who identify as Aboriginal and Torres Strait Islander Peoples. 30 Provision is made for a person to intervene in proceedings in this Court in r 9.12 of the Federal Court Rules 2011 (Cth), which provides: (1) A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as may be determined by the Court. (2) The Court may have regard to: (a) whether the intervener's contribution will be useful and different from the contribution of the parties to the proceeding; and (b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish; and (c) any other matter that the Court considers relevant. (3) When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener, including: (a) the matters that the intervener may raise; and (b) whether the intervener's submissions are to be oral, in writing, or both. 31 By r 1.33, any grant of leave may be subject to conditions: The Court may make an order subject to any conditions the Court considers appropriate. 32 In Roadshow Films at [2]-[3], the High Court stated: In determining whether to allow a non-party intervention the following considerations, reflected in the observations of Brennan CJ in Levy v Victoria, are relevant. A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this Court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation. Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose. (Footnote omitted.) 33 These principles have been applied by this Court on many occasions, including recently by the Full Court in James Cook University v Ridd [2020] FCAFC 123; 298 IR 50 at [38].

The issues in the proceeding and mtwAC's likely contribution 34 At [14] of his Concise Statement, Mr Helmbright contends: The Applicant has been recognised as an Aboriginal person by people enjoying traditional authority within an Aboriginal community. 35 The Concise Statement then explains why the applicant contends this is the case. As mtwAC submits, the evidence relied on by the applicant to prove this contention is the certificate from mtwAC. The applicant's contention is materially equivalent to the language used by Brennan J in Mabo (No 2) at 70; namely, mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people. (Emphasis added.) And see Love/Thoms at [76] (Bell J), [291] (Gordon J), [458] (Edelman J). 36 I do not accept the Minister's characterisation, in his submissions, of the issues between the existing parties to the proceeding. It is not the case that the only issue between the parties is whether this Court should apply what Deane J said in the Tasmanian Dam Case or what Brennan J said in Mabo (No 2) at 70. I accept that is an issue, but it is not the only one. 37 The Minister's case in this proceeding necessarily goes further than a debate about which is the correct, or appropriate, legal approach to the determination of who is an Aboriginal Australian for the purposes of deciding if a person is, or is not, an "alien". According to the Minister's Concise Response dated 2 June 2020, Mr Helmbright is not an Aboriginal Australian because he does not meet the third limb of the tripartite test applied by Brennan J in Mabo (No 2), being recognition by the Aboriginal community. 38 The premise of the Minister's contention is that the tripartite test in Mabo (No 2) represents the only legal approach to the resolution of who is, and who is not, an alien for the (presently relevant) purposes of the provisions of the Migration Act. If the Court decides the premise of the Minister's contention is correct, it must still decide whether Mr Helmbright has, as a matter of fact, been "recognised as an Aboriginal person by people enjoying traditional authority within an Aboriginal community", and what is meant by this phrase. 39 The Minister makes specific contentions about the meaning of this phrase. Mr Helmbright does not meet the third limb, the Minister contends, because the Aboriginal society which has recognised him (through the certificate issued by mtwAC) has not "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". That is, of course, the language used by Gleeson CJ, Gummow and Hayne JJ in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 at [49]. This, the Minister contends, should now be seen as part of the legal requirement for satisfaction of the tripartite test as enunciated in Mabo (No 2) and as agreed to be applicable in Love/Thoms. The Minister relies on the references to this approach in the reasons for judgment of Nettle J at [269]-[271], and [278], which he contends provide the correct meaning. The resolution of that contention is a second important component of this proceeding, on any view. 40 Therefore, I reject the Minister's submission that mtwAC's submissions seek to raise a "new issue" in this proceeding. Although the Court has not read or considered the full submissions filed by mtwAC (they having been emailed to chambers without notice to the other parties and without leave), taking account of what is said about them in the Minister's submissions at [15], it is apparent the issue set out in [39] above is raised on the applicant's Concise Statement, read together with the Minister's contentions in the proceeding.

The interests of mtwAC 41 Thus, the legal capacity of mtwAC, to represent (or comprise) a body of persons who can meet the requirement asserted by the Minister, is a central issue in this proceeding. Putting to one side its role in recognising the applicant as a Tasmanian Aboriginal person, findings made by the Court on this matter are likely to affect mtwAC's legal capacity to provide recognition for any other people in the applicant's situation, and may affect its capacity to provide recognition for other legal and administrative purposes. The latter cannot be said to be a fanciful possibility. Both mtwAC and the applicant made submissions to this effect, and I accept those submissions. I also accept that such a finding is capable of being adverse in ways other than purely legal consequences: it is capable of adversely affecting and undermining the very reasons for the existence of the organisation, and the cultural and remedial functions, goals and aspirations it describes as central to its role in the Tasmanian community, and in the wider Australian community. Those are additional adverse effects, which should be acknowledged, but they are not the primary ones upon which I base my decision to grant leave to intervene. 42 I do not consider the likely or possible (and not fanciful) effects of the Minister's arguments on mtwAC's interests are merely "indirect or contingent"; quite the contrary. First, the resolution of the issues in this proceeding has a direct effect on mtwAC's performance of its role of certifying Mr Helmbright as a Tasmanian Aboriginal person, descended 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. Satisfaction of the recognition limb is not a matter within the control or provenance of any individual who seeks to invoke the tripartite test from Mabo (No 2): it is a matter within the control of a third party. Here, mtwAC is accepted to be that party (subject to the Minister's arguments I have summarised at [39] above), and there is no suggestion there is any other entity, body, person or organisation who might grant recognition. Second, much depends on what is meant by the Minister's phrase "extra-curial", which may have wider and narrower meanings in this kind of context. The Minister's submissions do not explore what this meaning is, or might be. I do not consider it is plain that even outside the direct effect to which I have referred, all other effects on mtwAC from the success (or failure) of the Minister's arguments, will be "extra-curial". 43 I also consider that mtwAC's circumstances, as disclosed in the present statement of agreed facts, provides an appropriate vehicle to test the Minister's contentions about the factual and legal operation of the tripartite test which was applied in Love/Thoms. That being the case, it is in the interests of justice that the organisation whose circumstances provide that appropriate vehicle be able to participate as a party to the proceeding. 44 The Minister's submission that "[t]here is no evidence to suggest that it is any part of the mtwAC's purposes or activities to recognise persons for the purposes of the Constitution" (original emphasis) is devoid of merit. Love/Thoms was decided in February 2020. This very case illustrates it has become part of mtwAC's functions to recognise persons affected by that decision, even if that had not been the case in the past because the legal principles in Love/Thoms had not previously been articulated in a way which would give mtwAC such a role.

Whether any duplication or disruption likely to be caused by granting leave to intervene 45 While, as the applicant's submissions fairly acknowledge, the submissions put by mtwAC and the applicant on the issues in the proceeding are likely to be consistent, they are being put from different perspectives, and with different interests affected. It is not unusual to have more than one party in a proceeding making submissions that are consistent with those of another party, but doing so from its own perspective, and in order to advance and protect its own, distinct interests. In my opinion, that is the role mtwAC seeks to play, and it is a legitimate one. 46 The Minister's submissions about potential disruption to the proceeding carry little weight in light of the conditions the Court has decided to impose. As I explain below, if there does need to be further evidence, or further development of submissions, then that will be permitted if it is in the interests of the administration of justice to do so. In those circumstances, such additional steps are not properly characterised as a "disruption". 47 The parties have been provided with mtwAC's proposed written submissions, and are therefore on notice about their contents. From its reply submissions on the interlocutory application it is clear mtwAC continues to rely on those submissions as its principal submissions in the proceeding. The Minister suffers no prejudice in leave being granted for mtwAC to rely on those, indeed he has the advantage of having known for some time what will be contended. However it is fair that mtwAC be required now to rely on that document as its written submissions. Like the other parties, it will be able to develop and explain those submissions orally at trial.

The Minister's amicus curiae alternative 48 As I have noted, the Minister does not oppose mtwAC being granted leave to appear as amicus curiae and, in that capacity, to make written and oral submissions. While that concession recognises the interests of mtwAC to a limited extent, and its capacity to assist the Court (being the core function of an amicus), it does not in my opinion go far enough. The interests of mtwAC are, as I have explained, so directly affected by the contentions put by the Minister in this proceeding that it should be able to defend those interests with the status of a party to the proceeding, including a right to appeal and to be heard on any appeal without being dependent on a further grant of leave by the Court. It seems doubtful this proceeding, if litigated to a conclusion at trial, will stop at trial level. It is in the interests of the administration of justice that mtwAC be a party from the trial onwards, if there be an "onwards".

Other relevant factors 49 This proceeding concerns a new and still developing aspect of Australian constitutional and administrative law. The Minister's contentions are far reaching, in terms of the development of the principles articulated by the majority in Love/Thoms. The same can be said of the applicant's contention that the tripartite test from Mabo (No 2) is not the only legitimate approach to determining, for the purposes of the construction and constitutionally valid operation of the relevant provisions of the Migration Act (at a minimum), whether a person is not an alien because she or he is an "Aboriginal Australian". 50 It is apparent mtwAC is capably represented by senior and junior counsel, and a reputable firm of solicitors. The Court can be confident its role in the proceeding will comply with s 37M and s 37N of the Federal Court Act, and is likely to be of assistance to the Court, given the different perspective it will bring, as I have explained. The role of "recognition" in these circumstances is a complex and developing one and the Court should be assisted by those with particular and distinct interests in that question, as mtwAC has. 51 I reject the Minister's (lengthy) contentions that mtwAC has not moved "expeditiously" to make its application, and has not provided a sufficient explanation of why it made its intervention application when it did. It is obvious mtwAC's interests in the resolution of the issues in this proceeding align with the applicant's and not the Minister's. I do not consider the Minister's insistence on being able to interrogate mtwAC about its decision to intervene and the timing of it, and the absence of what the Minister considers to be a satisfactory response from mtwAC to that interrogation, should be given any real weight. Some adversarial forensic behaviour by mtwAC is to be expected in the circumstances of this proceeding. It is in substance no different to the Minister's adversarial forensic behaviour in not disclosing what he might withdraw from the statement of agreed facts if mtwAC were granted leave to adduce evidence. I see nothing inappropriate in mtwAC's conduct to this point. 52 Due to no fault of the parties, the matter is now set down for trial in February 2021. There is plenty of time for the Minister to prepare, especially given he already has mtwAC's written submissions. The matter is set down for two days. If that proves insufficient, so be it. Further time will be found. This is an important case and it will be given the time all the parties reasonably need.

Conditions 53 Subject to what I say below, I accept the evidence of Ms Jackson in her supporting affidavit. Neither the applicant nor mtwAC have quarrelled with her evidence. It is clear the Minister has engaged substantively and in detail in the preparation of the statement of agreed facts, as the Court would expect him to do as model litigant. 54 There is a bare assertion in Ms Jackson's affidavit, and in the Minister's submissions, that a consequence of mtwAC's intervention would be that the Minister may need to "reconsider" the statement of agreed facts. It is unclear whether that was no more than some kind of in terrorem statement, made in a forensic context. It is hardly likely that a Commonwealth Minister would agree to facts unless they are consciously accepted to be accurate, so without more particularity it is difficult to imagine how any reconsideration by the Minister - any proper and genuine reconsideration - would be required. 55 That said, it is neither necessary nor appropriate for the leave to be granted to mtwAC at this point in time to include the adducing of evidence - that evidence being limited, on mtwAC's own submissions, to Mr Cameron's affidavit. Much of what is in Mr Cameron's affidavit and not in the statement of agreed facts is best treated as submissions in any event, and could fairly be part of the development of mtwAC's written submissions. If this condition is imposed, then the basis on which the statement of agreed facts needs to "reconsidered" would appear to fall away, if there ever was a basis. I accept that the timing of the application by mtwAC meant that the Minister's legal representatives did negotiate much of the statement of agreed facts on a basis which did not take into account potential intervention by mtwAC. However, with the conditions imposed, I do not consider there is any ongoing prejudice. 56 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. 57 Therefore two conditions will be imposed on mtwAC's intervention. First, that it relies on its written submissions already served on the parties, and it will be directed to file a fresh copy of them. Second, that subject to further order, it not be permitted to adduce evidence in the proceeding. If there are any affidavits to be read, the question of whether mtwAC should be permitted to cross-examine those deponents can be resolved at trial.

Costs 58 The costs of the interlocutory application will be reserved, the outcome of the proceeding being relevant to which party, if any, should bear the costs of the intervention application. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.