Mortimer J
This case concerned the definition of aboriginality for the purposes of s 51(xix) of Constitution. The applicant, Kenrick Henare Helmbright, was a non-citizen who identified as an Aboriginal Australian. It was accepted that his maternal grandmother five generations back was an Aboriginal woman of the Pairebeene clan in Tasmania. Mr Helmbright was born in New Zealand in 1983 and moved to Western Australia in 2005. He remained in Australia under a Special Category Visa, but was advised in 2020 that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was considering cancelling his visa under s 501A(2) of the Migration Act 1958 (Cth). As a result, he sought a declaration that he was not an alien for the purposes of s 51(xix) of the Constitution. Mr Helmbright’s application was supported by the melythina tiakana warrana (Heart of Country) Aboriginal Corporation (mtwAC), an organisation that represents descendants of Aboriginal people living in north-eastern Tasmania at the time of first European settlement. The Minister argued that Mr Helmbright was not an Aboriginal person.
Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 (Love/Thoms)
The case turned on an interpretation of the decision in Love/Thoms, where it was found for the first time that an Aboriginal person could not be an alien for the purposes of s 51(xix) of the Constitution.
Issues
The issues to be determined were:
Whether the Court was bound to apply Brennan J’s approach to defining aboriginality in Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo (No 2)’), or whether the Court was free to adopt an alternative test, namely the test set out by Deane J in Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’).
if bound by the test in Mabo (No 2), what the content of that test was and whether it included a requirement that a person be recognised by a group which meets the requirements of a ‘Yorta Yorta’ society;
whether the applicant was an Aboriginal Australian by reference to the appropriate test
Submissions
Issue 1
The Minister submitted that the Court was bound to apply the Mabo (No 2) test as a result of the decision in Love/Thoms. The Minister argued that even if some justices in that case left open the possibility that another test might be used to determine whether a person was a non-alien Aboriginal Australian, a single judge of the Federal Court was bound to apply precedent. Furthermore, even if the Court had some choice about the test to be applied, the Mabo (No 2) test was the most appropriate as it was the depth of connection between traditional law and custom and particular land which established certain Aboriginal Australians as non-aliens.
Mr Helmbright submitted that the Court was not bound to apply the Mabo (No 2) test as the majority did not decided that it was the only test for non-alienage. Furthermore, that Deane J’s test in the Tasmanian Dam Case was the preferable test in this case, as the Mabo (No 2) test was primarily concerned with aboriginality in the context of native title, while Deane J’s tripartite test (descent, self-identification and community recognition) has been applied in a broader range of settings.
Issue 2
There was disagreement as to the content of the Mabo (No 2) test, in particular, whether it required a person to be recognised by a group satisfying the continuity requirements set out in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (‘Yorta Yorta’). That is, recognition by a group of Aboriginal or Torres Strait Islander people who, as a ‘society’, have been continuously ‘united in and by their acknowledgement and observance of a body of law and customs’ from sovereignty until the present day so that, under their laws and customs, they can also establish a continuing connection with particular land and waters, thus proving they hold native title.
The Minister submitted that the test did require this by reference to the reasons of Nettle J in Love/Thoms, which he further submitted were accepted by the majority. This was termed the ‘native title approach’.
Mr Helmbright appeared to assume that recognition by a Yorta Yorta society was a part of the Mabo (No 2) test. However, he submitted that it was inappropriate to require such recognition as Courts have recognised that ‘strong, vibrant and dynamic’ contemporary Aboriginal communities exist even if they cannot meet the ‘continuity’ requirements of s 223 of the Native Title Act 1993 (Cth) (NTA). He submitted it is incongruous that a person descended from an Aboriginal person who genuinely self-identifies as Aboriginal and is recognised by a contemporary vibrant Aboriginal community could be said not to belong to Australia.
MtwAC submitted that the Court should apply Deane J’s approach in the Tasmanian Dam Case, however, in the alternative, if the Court was bound to apply the Mabo (No 2) test it would be able to do so in a more flexible way than the Minister had suggested, and not require a person such as Mr Helmbright to be recognised as a member of a group that holds, or is proven to be entitled to hold, native title.
Decision
Issue 1
Mortimer J concluded that the majority reasoning in Love/Thoms, which was reflected in the ratio of that decision, did not leave a single judge of the Federal Court free to adopt a different test to the one set out by Brennan J in Mabo (No 2) even though the majority in Love/Thoms expressly recognised there may be other approaches available for determining whether someone like Mr Helmbright was an Aboriginal Australian. However, Her Honour accepted that it may be that an approach other than that adopted by Brennan J in Mabo (No 2) is available to determine whether a person is, or is not, an Aboriginal Australian and not an alien within s 51(xix) of the Constitution.
Issue 2
The Mabo (No 2) test as expressed by Brennan J in that case requires ‘biological descent from the indigenous people’ and ‘mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people’ [83]. Mortimer J said that this test differed from that of Deane J in the Tasmanian Dam Case by reason of its emphasis on recognition by traditional authority, not merely a community.
However, Her Honour held that the decision in Love/Thoms did not require the Court to apply the mutual recognition limb of the Mabo (No 2) test by reference to a native title approach and rejected the Minister’s submission that Nettle J’s reasoning in Love/Thoms supported this approach. In order words, the decision in Love/Thoms did not stand for the proposition that unless a non-citizen who identifies as Aboriginal can prove membership of a native title holding group (including by reference to the requirements in Yorta Yorta), they cannot be within the concept of ‘Aboriginal Australia’ found to be incompatible with alienage. Although in the context of Mabo (No 2), Brennan J’s reference to ‘membership’ referred to membership of the group or clan said to hold native title, Her Honour held that the holding of native title was merely contextual, not definitional.
Issue 3
Applying the Mabo (No 2) test as understood in this case, Mortimer J concluded that Mr Helmbright had proven the descent limb and the self-identification aspect of the mutual recognition limb, but had not proven the second aspect of the mutual recognition limb. He had proven that he was recognised by the community mtwAC represents, but had not proven the recognition had been given by ‘elders or others enjoying traditional authority.’ Membership of mtwAC was determined by directors, who only had to be over 18 years of age and themselves qualified as members. Although the group occasionally consulted a Circle of Elders, there was no evidence the Circle was involved in membership applications, or Mr Helmbright’s membership application. Furthermore, there was no evidence that they were ‘elders’ as traditionally understood. This meant Mr Helmbright had not proven he was not an alien for the purposes of s 51(xix) of the Constitution.
Her Honour noted that if Deane J’s approach in the Tasmanian Dam Case was able to be applied, that test would have been satisfied.