Plaintiffs v First Defendant

Matthew Hocking, Acting Victorian Government Solicitor

1 In this proceeding, the plaintiffs seek judicial review of the decision of the Attorney-General for the State of Victoria to enter into the Taungurung Recognition and Settlement Agreement (RSA), under s 4 of the Traditional Owner Settlement Act 2010 (Vic) (Settlement Act). The other party to the RSA is the Taungurung Land and Waters Council, formerly the Taungurung Clans Aboriginal Corporation. The background to the proceeding is set out more fully in my earlier reasons for decision in Gardiner v Attorney-General (Gardiner No. 1).[1]

2 The plaintiffs commenced the proceeding against the Attorney-General on 10 May 2019. Their originating motion was supported by an affidavit of David Shaw of Holding Redlich, the solicitors for the plaintiffs, which exhibited the Attorney-General's reasons for decision, the RSA, and a number of other documents.

3 The originating motion challenged the Attorney-General's assessment that, for the purposes of the Settlement Act, the Taungurung was the traditional owner group for the area covered by the RSA, and that the Council was the traditional owner group entity appointed by the group to represent them in relation to that area. The plaintiffs claimed that this assessment meant that the decision to enter into the RSA involved an excess of jurisdiction and manifest legal error. They also claimed that the Attorney-General had acted contrary to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), by failing to give proper consideration to their cultural rights under s 19(2) of the Charter, and by acting incompatibly with those rights.

4 At the first directions hearing on 29 May 2019, Clayton JR ordered that the Council be joined as a second defendant to the proceeding. She listed the matter for trial on 25 February 2020, with an estimate of half to one day. The orders also directed the Attorney-General to file and serve any affidavits on which she intended to rely by 17 July 2019, and the plaintiffs to file and serve any further affidavits by 7 August 2019.

5 The Attorney-General filed an affidavit of Dean Cowie, the manager of the Native Title Unit of the Department of Justice and Community Safety, dated 30 July 2019. The Council filed no evidence.

6 In November 2019, after an unexplained delay of several months, the plaintiffs filed five affidavits - an affidavit of each plaintiff, and an affidavit of Gary Murray. Those affidavits traversed matters that had not previously been in issue, including the ancestry of each of the plaintiffs and the decision-making processes of the Taungurung traditional owner group in relation to the RSA. For the first time, the plaintiffs put forward evidence to support their claims that the Ngurai Illum Wurrung and the Waywurru are separate from the Taungurung, and that Ngurai Illum Wurrung and Waywurru country should not have been included in the RSA area.

7 In late January 2020, the trial date was vacated by consent, and on 31 January 2020, the plaintiffs filed a summons seeking directions, including leave to file a further amended originating motion with three new grounds of review. Both defendants opposed the amendment application. In addition, the Attorney-General contended that the plaintiffs' existing Charter grounds should be struck out or summarily dismissed.

8 After a hearing on 17 March 2020, I made orders granting leave to file a further amended originating motion including only one of the three proposed new grounds. I refused leave to include the other two proposed new grounds, and indicated that I was not disposed to summarily dismiss or strike out the Charter grounds. My reasons for those decisions follow.

9 The grounds set out in the originating motion filed in May 2019 first referred to relevant provisions of the Settlement Act and the Native Title Act 1993 (Cth). It went on:

1. In deciding to enter the Taungurung Recognition and Settlement Agreement (the RSA), the Attorney:

(1) purported to be satisfied that:

(a) the Taungurung constitute a traditional owner group (within par[t] (a) of the definition in s 3 of the TOSA) for the RSA area;

(b) the Second Defendant, Taungurung Clans Aboriginal Corporation (TCAC) (now-Taungurung Land and Waters Council (Aboriginal Corporation) (TLWCAC), then referred to as Taungurung Clans Aboriginal Corporation (TCAC), is the traditional owner group entity (as defined in s 3 of the TOSA) for the RSA area;

(2) acknowledged that the major issues on whether the Attorney should be so satisfied of the matters at (1) included the appropriateness of treating Tooterie as a Taungurung ancestor and that Ngurai-lllum is, or at the least could be, a distinct or competing traditional owner group for part of the RSA area;

(statement of reasons 28 February 2019 at [9], [25(a)(i)], [33(b)(ii), (i)]).

1. Prior to an authorisation meeting held by members of the Taungurung on 20 October 2018:

(1) At earlier meetings on 14 July 2012 and 10 August 2013 (described in the minutes as Taungurung Traditional Owner Full Group Meetings) those in attendance decided that Ngurai-lllum should be treated as a clan or sub-group of the Taungurung and decided upon the addition of certain people as Taungurung ancestors, including Tooterie (who is a Ngurai-lllum ancestor).

(2) At a meeting on 21 September 2013 (described in the minutes as a Taungurung Traditional Owner Full Group Meeting) those in attendance purported to appoint TCAC as the traditional owner group entity to represent the Taungurung People for the purposes of the TOSA as the traditional owner group (and the persons who hold or may hold native title) in relation to the RSA area.

(3) The proposed RSA, together with the proposed ILUA, presented at the 20 October 2018 meeting provided that the Taungurung People as the traditional owner group (and as the persons who hold or may hold native title) in relation to the RSA area consist of Aboriginal persons who are descended from 12 apical ancestors identified as being associated with Taungurung country that included Tooterie (who is a Ngurai-lllum ancestor).

1. On 20 October 2018 members of the Taungurung held an authorisation meeting, the draft minutes for which record, sequentially:

(1) verification of attendees entitled to participate in the authorisation meeting as descendants of the 12 apical ancestors checked against a genealogy (item 6);

(2) adoption of an agreed decision-making process for the meeting and authorisation of an ILUA (resolution 2);

(3) removal of Tooterie as an apical ancestor from the RSA agreement documents (resolution 10);

(4) authorisation of the making of the Taungurung ILUA and the RSA agreements, and of an application to have the ILUA registered under the NTA (resolution 13);

(5) authorisation of TCAC to be the traditional owner group entity, on behalf the people who hold or may hold native title in the ILUA area (being the same as the RSA area), for the purposes of managing the benefits under the ILUA and the TOSA, and to formally enter the agreements (resolution 15);

and no action was taken to limit authorisation to the descendants of the remaining 11 apical ancestors and to stop and reconvene the authorisation meeting accordingly.

(1) There:

(a) was not a (single) group (in terms of the TOSA definition of traditional owner group) in relation to the RSA area:

(i) who may authorise within the meaning in s 251A of the NTA the making of an indigenous land use agreement;

(ii) who could appoint a traditional owner group entity for the RSA area to represent the group for the purposes of the TOSA;

(b) could not within the meaning in s 251A of the NTA be a single authorising decision, as purported to occur at the 20 October 2018 meeting, binding both the Taungurung and Ngurai-lllum.

(2) Alternatively:

(a) those remaining in the re-constituted Taungurung group descended from the 11 apical ancestors could not comprise all of the persons who hold or may hold native title in relation to the RSA area and who may authorise within the meaning in s 251A of the NTA the making of an indigenous land use agreement; or

(b) if the Tooterie descendants are not, or are not considered to be, persons who hold or may hold native title in relation to the RSA area, authorisation of the Taungurung ILUA was purportedly given by persons other than those who hold or may hold native title through those persons at the 20 October 2018 meeting.

1. The Attorney was required by the terms of the TOSA, but failed to consider, whether:

(1) The Taungurung, as re-constituted at the authorisation meeting on removal of Tooterie, authorised the RSA within the meaning in s 251A of the NTA:

cf statement of reasons [9(a)], [12(a)], [25(a)], [30]-[31], [33(g)].

(2) Following re-constitution of the Taungurung, TCAC (now TLWCAC) was a traditional owner group entity that was appointed by a traditional owner group to represent the group: cf statement of reasons [9(b)], [12(b)], [30], [33(b)].

1. The decision by the Attorney to enter the RSA was made without or in excess of jurisdiction by his misapprehension of the statutory criteria of what is a traditional owner group and traditional owner group entity under the TOSA.
2. Further, the decision to enter the RSA is affected by a legal error on the face of the record in the Attorney acting on the view that the Ngurai-lllum were best represented by the Taungurung group case concept, for reasons including that there was allegedly no prospect of the Ngurai-lllum being a group capable of entering into its own separate RSA (statement of reasons [25(a)(i)]), when the correct application of the TOSA is whether or not there is a traditional owner group and traditional owner entity (as defined in s 3 of the TOSA) in relation to the relevant area of public land.
3. Further, in deciding to enter the RSA the Attorney considered that it was not appropriate to excise the areas of land from the RSA area which were disputed by competing traditional owner groups on the basis that to do so would place an unfavourable limitation on the Taungurung's rights under s 19(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic): statement of reasons [33(i)].
4. In doing so, the Attorney, contrary to s 38(1) of the Charter, acted in a way that was incompatible with, or failed to give proper consideration to, the human rights protected by s 19(2)(a) and (d) of the Charter that Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community, to enjoy their identity and culture, and to maintain their distinctive spiritual, material and economic relationship with the land with which they have a connection under traditional laws and customs, as each traditional owner group is a community for the purposes of s 19 of the Charter and the exercise of power under the TOSA.
5. By ss 38 and 39 of the Charter the plaintiffs seek relief in respect of the decision to enter the RSA on the ground of unlawfulness arising because of the Charter in addition to the decision being unlawful on the grounds arising under the TOSA.

10 Paragraphs 7 to 10 of the originating motion concern whether the Attorney-General misapprehended that the Taungurung were the traditional owner group for the entire area covered by the agreement, given the decision made by the Taungurung group on 20 October 2018 to exclude descendants of Tooterie from the group.

11 Paragraphs 11 to 13 invoke both the procedural and the substantive limbs of s 38(1) of the Charter. The plaintiffs contend in those paragraphs that, in making the decision, the Attorney-General failed to give proper consideration to their distinct cultural rights as Aboriginal persons, protected by s 19(2)(a) and (d) of the Charter, and acted incompatibly with those rights. On that basis, they contend that the decision was unlawful under s 38, and seek a remedy under s 39 of the Charter.

12 The plaintiffs sought leave to add three additional grounds to their originating motion, as follows:

Procedural fairness

13A. In reaching the Decision, the First Defendant was obliged to, but failed to:

(a) disclose to the plaintiffs Documents that were and/or Information that was credible, relevant and significant to the decision-making process he was undertaking;

Particulars

As far as the plaintiffs can presently say, the Documents include:

(i) a "Part A Threshold Statement" prepared by FNLRS; and

(ii) at least twelve (12) briefs prepared for the First Respondent.

The plaintiffs have not had access to any of these Documents. Further particulars may be provided following discovery.

As far as the plaintiffs can presently say, the Information comprises the information recorded in the Documents, and such other information as informed the Decision but which has not been provided to them. Further particulars may be provided following discovery.

(b) disclose to the plaintiffs the substance of the Documents and/or the Information that was credible, relevant and significant to the decision-making process he was undertaking

Particulars

The plaintiffs refer to and repeat the particulars sub-joined to paragraph 13A(a), above.

(c) disclose to the plaintiffs the substance of the Documents and/or the Information that was credible, relevant and significant to the decision-making process he was undertaking, to the extent those Documents or that Information (or the substance of them) was adverse to their interests;

Particulars

The plaintiffs refer to and repeat the particulars sub-joined to paragraph 13A(a), above.

(d) put the plaintiffs on notice of how (if at all) their interests were to be considered in the decision-making process he was undertaking; and

(e) accord the plaintiffs any or any sufficient opportunity;

(i) to make submissions; and/or

(ii) to make submissions formulated in light of or informed by the Documents and/or the Information.

Particulars

The plaintiffs refer to and repeat the particulars sub-joined to paragraph 13A(a), above.

And the failures identified at sub-paragraphs (a)-(e) above, together and/or in any combination, deprived the plaintiffs of the possibility of a successful outcome.

First defendant unlawfully acted through NTU

13B. In reaching the Decision, the First Defendant relied entirely on the Native Title Unit within his Department (the NTU) to discharge his procedural fairness obligations under TOSA s 4 despite:

(a) the lack of any, or any proper, delegation of the Attorney's functions under TOSA s 4 to the NTU; and

(b) the lack of any, or any proper, authorisation of the NTU so to act.

NTU's 'Guidelines' - no lawful basis

13C. Further or alternatively to ground 13B, in reaching the Decision. the NTU merely applied its own 'Guidelines' document, despite:

(a) the Guidelines having no legal force, effect or status;

(b) the Guidelines being in the nature of an internal working document;

(c) the Guidelines not having been produced by the repository of the power in TOSA s 4 (the First Defendant) -

With the effect that the Decision was the result of an unlawfully fettered decision-making process.

13 I granted leave to add proposed ground 13A, concerning procedural fairness, but refused leave to add the other two proposed grounds.

14 Rule 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides that the Court may, at any stage, order that any party have leave to amend any document in the proceeding, for purposes including 'determining the real question in controversy between the parties'. The power to permit an amendment is to be exercised to 'facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute',[2] having regard to the objects set out in s 9(1) of the Civil Procedure Act 2010 (Vic). As the defendants emphasised, it cannot be assumed that the Court will give leave to reformulate a claim at a late stage in the proceeding.

15 A critical consideration is whether the proposed amendment has a real prospect of success.[3] An amendment will not be permitted if it is 'unarguable, fanciful or futile and could not realistically add to the applicants' prospects of obtaining the relief sought'.[4]

16 Another important consideration is whether the party seeking leave to amend has provided a satisfactory explanation for doing so, at the stage of the proceeding when leave is sought.[5] Also relevant are whether the other parties would suffer any unfair prejudice due to delay, and case management considerations such as the efficient use of the Court's finite resources, and the public interest in the timely resolution of disputes.[6]

17 The plaintiffs contend that the Attorney-General owed them a duty of procedural fairness, because their rights and interests as traditional owners were liable to be affected by his decision to enter into the RSA and the ILUA.[7] They submitted:[8]

The extent of the obligation of procedural fairness that arises when a decision-maker exercises a power conferred by statute must be assessed by reference to its legislative (and broader) context. The TOSA and the Native Title Act together create a scheme which finally resolves native title claims to particular land. Once a settlement is reached, no person, whether or not a party to the settlement, may agitate a further claim over the same land. This power of settlement is conclusive and far-reaching - the ownership or custodianship of land, which may have existed for millennia and been contested for centuries, is deemed finally adjudicated. Given the gravity of what is at stake for the affected persons, particularly those who may be the subject of a decision adverse to their interests, the context requires the Attorney to give those persons the highest standard of procedural fairness when making a decision to agree to settlement under the TOSA.

Neither defendant submitted that this proposition was not arguable.

18 The essence of the proposed procedural fairness ground is that the Attorney-General had regard to information that was 'credible, relevant and significant' to the decision,[9] which was not disclosed to the plaintiffs, and to which they had no opportunity to respond. This information was contained in two categories of document:

(a) The 'Part A Threshold Statement', a document prepared by the Taungurung people and submitted to the State, setting out the basis on which they claimed to be a traditional owner group with traditional and cultural associations with the area of land for which they proposed an agreement. 'Threshold Guidelines for Victorian traditional owner groups seeking a settlement under the Traditional Owner Settlement Act 2010', prepared by the Native Title Unit of the Department of Justice,[10] require a traditional owner group seeking to negotiate a recognition and settlement agreement to prepare a Part A Threshold Statement, in order to assist the State to assess whether to negotiate with that group under the Settlement Act. The Taungurung Part A Threshold Statement was submitted in September 2013, on a confidential and without prejudice basis, and was not published by the State. A summary of the document was published in 2014 as part of the notification process undertaken pursuant to the Guidelines.

(b) Twelve briefs provided to the Attorney-General by the Native Title Unit, between January 2015 and October 2018. These briefs were referred to in the Attorney-General's statement of reasons. Public interest immunity is claimed in respect of nine of the briefs, and parts of two briefs are said to be subject to legal professional privilege.

19 The defendants do not dispute that these documents were not provided to the plaintiffs before the Attorney-General decided to enter into the RSA. They both submitted that the amendment should not be allowed, although they put this submission in different ways.

20 In written submissions, the Attorney-General argued that a breach of the obligation of procedural fairness gives rise to jurisdictional error only if it is material to the decision, and that materiality is a question of fact on which the plaintiffs bear the onus of proof.[11] Initially, the Attorney-General submitted that it was not arguable that the plaintiffs would or could have responded to the documents in a way that would have led to a different, let alone successful, outcome.

21 During the hearing on 17 March 2020, the Attorney-General's position moderated to an acceptance that the proposed procedural fairness ground might be arguable, but that it was embarrassing not to understand 'what [the plaintiffs] say could have been done but wasn't in fact done'.[12] The Attorney-General's submissions at the hearing focussed on the lateness of the application to amend, in circumstances where the plaintiffs had been aware all along that they had not had access to the full Part A Threshold Statement.

22 The Council submitted that, without having seen the Part A Threshold Statement or the Ministerial briefs, the plaintiffs did not have a proper basis to allege that there had been a denial of procedural fairness. It submitted that, while it may be safe to assume that the documents included 'credible, relevant and significant' information, there was nothing to demonstrate that the information was not known to the plaintiffs, or that they were denied an opportunity to be heard in respect of it. It argued that it would be premature to allow the amendment, when the plaintiffs had not obtained production of the documents.

23 I did not find either submission persuasive. As outlined in Gardiner No. 1, there was a reasonable basis for the plaintiffs' belief that there was information in the Part A Threshold Statement that was material to the Attorney-General's decision, but was not included in the public summary made available to the plaintiffs.[13] In particular, the public summary that was available to the plaintiffs did not include the substance of the findings of the historical and anthropological research that informed the descriptions of the Taungurung traditional owner group and the proposed agreement area.

24 Further, in circumstances where the plaintiffs had not yet seen the Part A Threshold Statement, they could hardly be criticised for not identifying how they might have responded to it, or how their response might have changed the outcome. I have since made orders requiring the Attorney-General to produce the Part A Threshold Statement to the Court, and permitting inspection by the plaintiffs subject to confidentiality undertakings.[14] The plaintiffs are now in a position to identify what, if anything, they would or could have submitted in response to information in the Statement that was not previously available to them, and how that differs from any submissions they did make about the composition of the Taungurung traditional owner group and the boundaries of the RSA area.

Proposed ground 13B - Acting unlawfully through the Native Title Unit

25 The second proposed new ground was that the Attorney-General acted unlawfully through the Native Title Unit, by relying on it to discharge his procedural fairness obligations without it having any proper delegation or other authorisation to do so. In oral submissions, this ground was described as being to the effect that the Attorney-General had 'abdicated his decision-making power' by relying on and acting through the Native Title Unit - to the point where, it was submitted, the decision to enter the RSA was in fact made by the Native Title Unit and not the Attorney-General.

26 I did not consider that this proposed ground had any real prospect of success. There is nothing untoward about a Minister relying on public servants to undertake consultation and to provide information and advice.[15] The Attorney-General's reasons for decision make it plain that, while the Attorney-General relied on the Native Title Unit to carry out the notification process and to provide him with information and advice, the decision to enter into the RSA was his. Senior counsel for the plaintiffs did not point me to any part of the reasons that suggested that the Attorney-General had delegated the ultimate decision to the Native Title Unit. I could find no basis for contending that he did.

Proposed ground 13C - 'Guidelines' unlawful

27 The third proposed new ground was that the Native Title Unit (not the Attorney-General) had unlawfully fettered the decision-making process by applying the Guidelines.

28 The Guidelines were published in 2013 by the Native Title Unit, and 'provide information about preliminary or threshold matters that traditional owner groups need to prepare for and address, should they wish to pursue a recognition and settlement agreement with the State of Victoria' under the Settlement Act.[16] They also outline a process of 'threshold notification', for notifying the wider Victorian traditional owner community that a traditional owner group is seeking an agreement under the Settlement Act, and providing members of that community with an opportunity to comment on certain matters.[17]

29 The Attorney-General's reasons for decision referred to the Guidelines, as follows:

1. The TOS Act does not of itself provide for an application process for traditional owner groups who seek a recognition and settlement agreement.
2. In August 2013 the State approved Threshold Guidelines for Victorian traditional owner groups seeking a settlement under the Traditional Owner Settlement Act 2010 (the Guidelines) in order to provide a structured, transparent process for negotiations between the State and Aboriginal people wishing to enter agreements under the TOS Act. Whilst the State in practice requests that such Aboriginal people satisfy the guidelines, they are not a statutory instrument.
3. In the case of the Decision I was aware that the Native Title Unit of the Department of Justice and Regulation was using the Guidelines to assist it to develop a recommendation as to whether:

(a) the Taungurung constitute a 'traditional owner group' (as that term is defined in paragraph (a) of the definition of 'traditional owner group' in s 3 of the TOS Act) for the RSA Area;

(b) the TCAC is the 'traditional owner group entity' (as that term is defined in s 3 of the TOS Act) for the RSA Area; and

(c) entering into the RSA was otherwise consistent with the purposes of, and within my discretionary power under, the TOS Act.

30 As senior counsel for the plaintiffs accepted, there is nothing objectionable about adopting a policy to provide a structured and transparent process for negotiating settlement agreements, as long as the policy is not inflexibly applied or elevated above the statute.[18] He was unable to identify anything in the Attorney-General's reasons for decision that indicated that the Guidelines had been inflexibly applied, either by the Native Title Unit or by the Attorney-General. Nor was it suggested that the Guidelines were in any way inconsistent with the Settlement Act, or that they had been applied in a way that disregarded the provisions of the Settlement Act.

31 I could not discern any substance in the third proposed new ground.

32 The plaintiffs' explanation for seeking to add the proposed procedural fairness ground at a late stage in the proceeding was that it was not until they had read and considered Mr Cowie's affidavit that they became aware of the significance of information in the Part A Threshold Statement that had not been included in the public summary. The plaintiffs foreshadowed the ground in written submissions filed on 6 December 2019, but did not formally seek leave to amend until after an unsuccessful mediation on 19 December 2019.

33 The Attorney-General submitted that, by reason of the Guidelines, the plaintiffs should have been aware of the existence of the Part A Threshold Statement, and its significance for the Attorney-General's decision when they commenced the proceeding. Indeed, they had asked to be provided with it as long ago as December 2018. While they raised procedural fairness concerns during the negotiation and approval of the RSA, they had elected not to include a procedural fairness ground in their originating motion filed in May 2019. It was argued that there was no explanation why the plaintiffs now wished to reformulate their case.

34 While I accept that the plaintiffs have known of the existence and general importance of the Part A Threshold Statement since before they commenced the proceeding, Mr Cowie's affidavit provided new information on a critical issue. As mentioned, Mr Cowie's affidavit was filed on 30 July 2019. It contained the following paragraph:[19]

In the course of the TOS Act processes, the State received anthropological and historical information from NTSV on behalf of the Taungurung, which concluded that the Ngurai-Illum and the Taungurung had common language, laws and customs. The State considered this information and accepted that it was reasonable to include country associated with the Ngurai-Illum in the proposed RSA area.

35 This paragraph went to the heart of the plaintiffs' complaint about the Attorney-General's decision to enter into the RSA. It disclosed that Ngurai Illum country was included in the RSA Area based on information that had not been made available to the plaintiffs. As far as I can tell, this had not previously been made clear to the plaintiffs.

36 Nearly four months elapsed before the plaintiffs filed their further affidavits, a delay that has not been explained. However, on 15 August 2019, the plaintiffs took the step of serving the Attorney-General with a notice to produce, requiring production of the Part A Threshold Statement and a number of other documents. The Attorney-General did not produce the Statement because the Council claimed it was confidential. This impasse has only recently been determined, after the plaintiffs sought an order requiring production of the document.

37 In those circumstances, I considered that the plaintiffs had provided a satisfactory explanation for seeking to amend their originating motion to include the proposed procedural fairness ground.

38 Although the plaintiffs were able to explain their late application to amend, it would have been preferable if they had made the application earlier. Other than that factor, the case management considerations were neutral. Granting leave to amend did not endanger a trial date. Indeed, as I explain below, the application to amend prompted me to list the matter for trial. I considered that adding the procedural fairness ground would not unduly prolong the trial, given that it is based on the same factual underpinning as the Charter grounds.

39 The Attorney-General did not submit that she would be prejudiced if the plaintiffs were given leave to amend their originating motion as proposed.

40 The Council relied on an affidavit of its chief executive officer, Matthew Burns.[20] Mr Burns deposed that delay in the proceeding was causing ongoing harm to the Taungurung community, specifically:

(a) The Taungurung thought that entering into the RSA was the end of a two-decade fight for recognition and a long and arduous process. This proceeding and the delay to their recognition is exhausting, distressing and demoralising.

(b) The uncertainty is making it difficult to prepare and plan for their future, because they do not know when or if the funding and other benefits that flow from the settlement agreements are to be released.

(c) Until the RSA is implemented, they are unable to exercise their rights on their country.

(d) The proceeding is absorbing time, energy and resources that would be better spent on work that directly benefits the Taungurung community. It has also affected potential economic opportunities, as other parties are wary about entering into contracts with the Council while the future of the RSA is uncertain.

(e) The proceeding is causing division within the Taungurung community, with some members blaming the Council or each other for not progressing the settlement agreements.

41 These are powerful reasons to hear and determine the proceeding as soon as possible. However, all of the difficulties set out in Mr Burns' affidavit are associated with the proceeding itself, and will not necessarily result from the proposed amendments.

42 The amendment application was made in circumstances where the parties had agreed to vacate the original trial date, and another trial date had not yet been fixed. At the hearing of the application, I indicated my intention to hear the matter in the week of 15 June 2020. The parties subsequently agreed to a timetable for the remaining interlocutory steps, and I made orders listing the matter for trial commencing on that date.

43 On that basis, I did not consider that allowing the amendment would cause additional prejudice to the Council and its members.

44 Overall, I was satisfied that it would further the overarching purpose of the Civil Procedure Act to give the plaintiffs leave to add their proposed procedural fairness ground. I considered the ground to have a real prospect of success, and was persuaded that its inclusion would facilitate the just resolution of the real issues in dispute between the plaintiffs and the defendants. Although the amendment application was made late in the proceeding, there was a satisfactory explanation for it, and the late addition of the ground will not unfairly prejudice either defendant.

45 The other two proposed new grounds lacked merit and, for that reason, I declined to allow those amendments.

46 The Attorney-General foreshadowed an application to summarily dismiss or strike out the plaintiffs' Charter grounds, although there was no formal application before me on 17 March 2020. The Attorney-General submitted that these grounds had no real prospect of success, did not disclose a cause of action, and would otherwise prejudice, embarrass or delay the fair trial of the proceeding. It was apparent that this submission was prompted by the breadth of the factual matters raised in the plaintiffs' 'reply' affidavits filed in late November 2019, and the broad brush nature of the plaintiffs' written submissions in relation to their Charter grounds.[21]

47 The Attorney-General's argument can be summarised as follows:

(a) The plaintiffs effectively dispute the merits of the Attorney-General's decision that the Taungurung are the traditional owner group for the RSA area. They impermissibly invite the Court to find that they, and not the Taungurung, are the traditional owners of the disputed parts of the RSA area. That is properly a matter for the Attorney-General to determine, and not for the Court to adjudicate in a judicial review proceeding.

(b) While the Charter can require an assessment that is closer to merits review than traditional judicial review,[22] the Court could only undertake the proportionality analysis required by s 7(2) if it is satisfied that the decision engaged and limited the plaintiffs' cultural rights protected by s 19(2).

(c) Section 19(2) of the Charter recognises that Aboriginal persons have cultural rights, with other members of their community. It does not confer a basis for the resolution of disputes between Aboriginal groups, nor the conferral of land rights to individual plaintiffs.

(d) The Court could not be satisfied that the decision to enter into the RSA engaged or limited the plaintiffs' s 19(2) rights, because that would require the Court to find that they had traditional owner rights in respect of disputed parts of the RSA Area. It was for the Attorney-General, not the Court, to determine who were the traditional owners for the purposes of the Settlement Act. The plaintiffs are impermissibly attempting to reopen that question, after an exhaustive six-year process.

(e) The Charter grounds necessitate the Attorney-General putting on evidence to justify that determination. This evidence is likely to be extensive and would replicate aspects of a contested native title hearing - the very thing that the Settlement Act is designed to avoid. The hearing would take considerably longer than the current estimate of five days.

(f) In light of the legal and procedural difficulties of the plaintiffs' Charter grounds, it is appropriate that they be summarily dismissed under s 63 of the Civil Procedure Act.

48 There are several reasons why I did not consider this argument suitable for determination on a summary basis.

49 First, the Attorney-General does not contend that the decision to enter into the RSA is not justiciable. Reasons for the decision were provided by the former Attorney-General, in response to a request made under s 8 of the Administrative Law Act 1978 (Vic). There was no suggestion then that the decision was not a 'decision' to which that Act applies. There is no suggestion now that the decision is not amenable to judicial review. Because the plaintiffs may seek judicial review remedies on the ground that the decision was unlawful, they may also seek those remedies on Charter grounds.[23]

50 Second, the cultural rights protected by s 19(2) of the Charter do not correspond exactly with the rights of traditional owners recognised by the Settlement Act. Before making the decision, the Attorney-General was satisfied that the Taungurung constitute a 'traditional owner group' for the RSA area, as defined in s 3(a) of the Settlement Act.[24] That is, he found that the Taungurung are:

a group of Aboriginal persons who may authorise (within the meaning in section 251A of the Native Title Act) the making of an indigenous land use agreement with the Minister, on behalf of the State -

(i) for the purposes of the settlement of any application of a kind listed in the Table to section 61 of the Native Title Act or in which the group agrees not to make an application of that kind; and

(ii) that is capable of being registered under section 24CK or 24CL of the Native Title Act;

Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community -

(a) to enjoy their identity and culture; and

(b) to maintain and use their language; and

(c) to maintain their kinship ties; and

(d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

52 There has been only limited judicial consideration of the content and operation of this right. In Clark-Ugle v Clark,[25] the Court of Appeal held that the right in s 19(2)(d) may be enjoyed both by Aboriginal persons who live on the land with which they have a connection, and by those who maintain a distinctive spiritual, material and economic relationship with the land, while living elsewhere. In Cemino v Cannan,[26] Ginnane J concluded that a magistrate considering whether to transfer a criminal proceeding to the Koori Court has a function under s 19(2)(a),[27] because 'the proper exercise of the discretion will affect whether an Aboriginal person has access to the Koori Court, which in turn enables an Aboriginal person to enjoy, in the sense of have the benefit of, their identity and culture when they are charged with criminal offences'.

53 Based on these authorities, it is at least arguable that the cultural rights protected by s 19(2) of the Charter may be enjoyed by Aboriginal persons beyond the members of a traditional owner group within s 3(a) of the Settlement Act. To put it another way, there is a real question whether a finding by the Attorney-General that a group of Aboriginal persons is a traditional owner group for an area of land, for the purposes of the Settlement Act, is determinative of whether other Aboriginal persons enjoy rights under s 19(2) in relation to that area. I have not formed any view about the answer to that question. However, I do not consider it to be suitable for summary determination, in a case where the answer may depend on facts that are in dispute.

54 Third, the Attorney-General did not submit that the affidavit evidence filed by the plaintiffs to date was incapable of establishing that they have cultural rights that are protected by s 19(2) of the Charter, or that the decision to enter into the RSA limited those rights. It is significant here that the plaintiffs do not bear the entire burden of proof on the question of whether the decision to enter into the RSA was incompatible with their human rights. If they are able to establish that they have cultural rights under s 19(2), and that the decision limited those rights, the burden will shift to the Attorney-General to demonstrate that the limit was justified under s 7(2) of the Charter.[28]

55 Fourth, the plaintiffs also rely on the procedural limb of s 38(1) of the Charter - that is, they contend that the Attorney-General did not give proper consideration to their distinct cultural rights under s 19(2). The Attorney-General did not submit that this contention has no real prospect of success. Rather, the complaint was that it required particularisation.

56 Fifth, I was not attracted to the submission that the plaintiffs' Charter claims should be summarily dismissed because they involve difficult questions of fact on which the defendants may wish to call substantial evidence. I do not accept that a hearing in relation to the Charter grounds will necessarily 'replicate many aspects of a full-blown contested native title hearing'.[29]

57 This is a judicial review proceeding, not a native title claim, and I am acutely conscious that I am concerned with the lawfulness, not the merits, of the Attorney-General's decision.[30] Although review for unlawfulness under ss 7(2) and 38(1) of the Charter may draw the court more deeply into the facts, the jurisdiction remains supervisory, not substitutionary.[31] One means of guarding against a drift into merits review is to afford appropriate weight and latitude to the decision of the repository of the relevant power.[32] What that means will vary from case to case:[33]

Context and circumstances may include the experience and expertise of the primary decision-maker, the information that a decision-maker acts on and the extent to which a decision is supported and objectively justified by a transparent process of reasoning. A detailed brief that informed the decision or detailed reasons from the decision-maker may be persuasive.

58 Here, it appears from the former Attorney-General's reasons for decision that he was satisfied, on the material available to him, that the Ngurai Illum are a clan of the Taungurung, and not a group capable of entering into a separate agreement under the Settlement Act.[34] He appears to have been satisfied from the available material that the disputed eastern area was Taungurung country, and that there was no prospect of the Waywurru being able to enter into a separate agreement in relation to that area.[35] He apparently also relied on advice that any limitation of s 19(2)(d) rights would be justifiable by reference to s 7(2) of the Charter.[36]

59 I anticipate that the evidence to be adduced by the Attorney-General will include the material that was available to Attorney-General Pakula when he reached these conclusions. At present, I am not convinced that the Attorney-General needs to present evidence over and above the material that informed the decision under review. In particular, I would take some persuading that I should receive expert evidence from either defendant.[37]

60 For these reasons, I was not inclined to accept the Attorney-General's invitation to summarily dismiss the plaintiffs' Charter grounds. I was not, on 17 March 2020, persuaded that the plaintiffs' Charter grounds had no real prospect of success, although they presented some case management challenges.

61 I did accept the Attorney-General's submission that the plaintiffs' Charter grounds required further particularisation, including an explanation of what parts of their evidence relate to their Charter claims, and how. I therefore made orders requiring the plaintiffs to file a separate written outline in relation to their Charter grounds, addressing the following issues:[38]

(a) which Charter rights of each of the plaintiffs are said to be engaged;

(b) what it is said that the Attorney-General did or did not do that limits the Charter rights of the plaintiffs; and

(c) which paragraphs of the plaintiffs' affidavit material relate to their claims under the Charter.

The intent of this order was to require the plaintiffs to articulate their Charter claims, beyond a mere assertion that their rights under s 19(2) had been breached.

62 At the time of writing these reasons, I am not satisfied that the outline that was filed by the plaintiffs did what was intended.[39] It did not, for example, identify which paragraphs of their affidavit material related to their claim that they have a connection under traditional laws and customs with land and waters within the RSA area, with which they have a distinctive spiritual, material and economic relationship. Nor did it explain, by reference to their affidavits, how the Attorney-General's decision to enter into the RSA with the Taungurung limited the plaintiffs' enjoyment of their Aboriginal culture and identity, or their ability to maintain their distinctive relationship with land and waters within the RSA area. It added a further assertion, not particularised, that the 'defective decision-making method' that preceded the Attorney-General's entry into the RSA was 'of its nature inconsistent with Charter s 19'.

63 I expressed my dissatisfaction at a further directions hearing on 14 April 2020, and queried whether it would be possible to conduct the trial in mid-June, given the breadth and uncertainty of the plaintiffs' Charter grounds. At that time, the Attorney-General's solicitors had written seeking further particulars, and the plaintiffs' solicitors were yet to respond. It remains to be seen whether there was a satisfactory response.

[1] [2020] VSC 224 (Gardiner No. 1), [1]-[7].

[2] Civil Procedure Act 2010 (Vic), s 7(1).

[3] Mandie v Menmart Nominees Pty Ltd [2016] VSCA 4, [41]-[47].

[5] Northern Health v Kuipers [2015] VSCA 172, [28] citing AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [40].

[6] AON Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175, [5] (French CJ), [111]-[113] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Eaton v ISS Catering Services Pty Ltd [2013] VSCA 361; (2013) 42 VR 635, [47]; Northern Health, [28]; Billington, [40].

[7] Relying on Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ) and Plaintiff M61/2010 v Commonwealth [2010] HCA 41; (2010) 243 CLR 319, [74]-[75].

[8] Plaintiffs' submissions for trial filed 6 December 2019, [45] (citations omitted).

[9] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 629 (Brennan J).

[10] The Department of Justice is now called the Department of Justice and Community Safety. Between January 2015 and December 2018, the Department was known as the Department of Justice and Regulation.

[11] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [38], [45]-[46] (Bell, Gageler and Keane JJ).

[12] Transcript of hearing on 17 March 2020, 70.

[13] Gardiner No. 1, [16]-[31], [38].

[15] Secretary to the Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 1; (2013) 209 FCR 215, [81]-[83].

[16] Department of Justice, Threshold Guidelines for Victorian traditional owner groups seeking a settlement under the Traditional Owner Settlement Act 2010, 2013 (Guidelines), 3.

[17] The Guidelines are described in detail in Gardiner No. 1, [16]-[27].

[18] See e.g. Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [52]-[54] (French CJ, Bell, Keane and Gordon JJ), [68] (Gageler J).

[19] Affidavit of Dean Cowie, affirmed 30 July 2019, [29].

[20] Affidavit of Matthew Julian Burns, affirmed 17 February 2020.

[21] Plaintiffs' submissions for trial, dated 6 December 2019.

[22] Referring to Certain Children v Minister for Families and Children (No. 2) (2017) 52 VR 441, [212].

[23] Charter, s 39. See generally, Judicial College of Victoria, Charter of Human Rights Bench Book, 3.3 - Proceedings for breach of the Charter (s 39), [14]-[24].

[25] [2016] VSCA 44, [143]-[144].

[26] (2018) 56 VR 480, [147].

[27] Under s 4F(2) of the Magistrates Court Act 1989 (Vic).

[29] First defendant's submissions in opposition to the interlocutory application, dated 12 February 2020, [38].

[30] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36 (Brennan J).

[31] PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373 (Patrick's Case), [313]-[317].

[32] Patrick's Case, [318]-[328]; Certain Children, [216]-[219].

[34] Exhibit DS-1.1 to the affidavit of David Shaw affirmed 10 May 2019 (Reasons), [25(a)].

[37] To date, no party has sought directions in relation to expert evidence: see Civil Procedure Act, s 65G.

[38] Orders of Richards J made 27 March 2020, Other Matters [C] and Order [5].

[39] Plaintiffs' written outline, dated 7 April 2020.