Federal Court of Australia

Hirama v Minister for Home Affairs [2021] FCA 648

ORDERS

THE COURT DECLARES THAT:

1.    The applicant is not an alien within the meaning of s 51(xix) of the Constitution.

THE COURT ORDERS THAT:

2.    The respondent pay the applicant’s costs of and incidental to the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1    This proceeding is part of a cohort of matters relating to people affected by the decision in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 375 ALR 597 (Love/Thoms). That is, it is a matter relating to an individual who is a non-citizen affected by an exercise of power under the Migration Act 1958 (Cth), but who claims to not be an alien and therefore outside the reach of legislation supported by s 51(xix) of the Constitution.

2    It is an agreed fact that the applicant is an “Aboriginal Australian”, as that term is used in Love/Thoms to describe a person who is not an alien within the meaning of s 51(xix). The applicant seeks a declaration to that effect, and costs. Given the agreed facts, the respondent, the Minister for Home Affairs, appropriately did not oppose the granting of declaratory relief, nor the making of an order for costs.

3    Therefore, the question for the Court is whether it is satisfied the declaratory relief sought is appropriate, and is supported by the evidence contained in the agreed facts. For the reasons that follow, declaratory relief will be granted, but not in precisely the terms sought by the parties.

4    These reasons should be read with my reasons for judgment in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647.

Procedural Background

5    This matter was commenced by application filed in the High Court of Australia on 2 October 2019. The application was accompanied by an affidavit affirmed by the applicant on 1 October 2019 in support of the request for extension of time to make the application, which was contained within the application itself.

6    The Minister filed submissions in response to the application, opposing the making of the orders sought and identifying the matter as one that would be potentially affected by the matter of Love/Thoms. The Minister sought that the proceeding to be adjourned pending the decision in Love/Thoms.

7    In this proceeding, after Love/Thoms was handed down, on 15 May 2020 and with the consent of the parties, Nettle J relevantly made orders granting the extension of time sought, and remitting the matter to be heard in this Court. The Minister submitted that the delay between the handing down of Love and the remittal orders made in this proceeding reflected

a period where the applicant’s matter was held in abeyance in the High Court while the parties explored whether the applicant was an Aboriginal Australian to whom the judgment applied.

8    An amended originating application was filed in this Court on 17 June 2020. A further amended application was filed on 22 September 2020, seeking only a declaration that the applicant is not an ‘alien’ within the meaning of s 51(xix) of the Constitution, and costs.

The decision in Love/Thoms

9    The decision of the High Court in Love/Thoms was published on 11 February 2020. I have set out my understanding of the reasons in detail in Helmbright at [104]-[111]; [150]-[214]. In short summary, a majority of the Court found that those non-citizens who fall within the term “Aboriginal Australians” are not “aliens” within the meaning of s 51(xix) of the Constitution. The majority employed the term “Aboriginal Australians” by reference to the description given by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 70. Therefore, Aboriginal Australians as so described are not vulnerable to exercises of power such as the visa cancellation and removal powers contained in the Migration Act, because those parts of the Migration Act are supported by s 51(xix).

10    The parties have sought that the proceeding be resolved in favour of the applicant on the basis of the approach set out by Brennan J in Mabo (No 2) at 70. As I explain in Helmbright, and as that proceeding itself illustrates, the Mabo (No 2) approach may not be the only approach contended to be available to determine if a non-citizen is an Aboriginal Australian, and therefore on the majority view in Love/Thoms not an alien. In Helmbright I held that, sitting as a single judge at trial level, I was bound to adopt the approach in Mabo (No 2) as it formed part of the ratio of the decision in Love/Thoms.

11    In this proceeding there was no dispute between the parties about whether the Mabo (No 2) approach should be adopted. In addition, Mr Hirama was prepared to agree to the application of additional criteria which the Minister contends arise from Nettle J’s reasons in Love/Thoms at [271] and [278] (the native title approach). The word “additional” is my description. In Helmbright I rejected the native title approach, which was also advanced by the Minister in that proceeding, and contested by the other parties. I found that the native title approach did not arise from Nettle J’s reasoning, as I understood it. Instead, I took an approach which I considered reflected the correct understanding of Brennan J’s reasons in Mabo (No 2), and I found that there was no modification or alteration made to Brennan J’s approach by any of the majority reasoning in Love/Thoms, albeit that approach was being applied to the question of alienage, rather than to the determination of who is a member of a community said to hold native title.

12    However, here Mr Hirama has agreed to the Court adopting a native title approach in making its findings of fact in this proceeding. I find that is because the applicant is aware that the Minister concedes Mr Hirama’s circumstances, as disclosed on the evidence, satisfy the additional criteria which feature in such an approach. It is therefore understandable that the applicant does not press upon the Court any other or different approach, such as the one pressed in Helmbright.

13    The Court is not bound by the parties’ agreement about such an approach. The Court must determine for itself what the law is, and I have explained in Helmbright what in my respectful opinion is the correct content of the Mabo (No 2) test as it was employed in Love/Thoms, and why it does not include any additional criteria requiring a non-citizen to prove they are a native title holder under the Native Title Act 1993 (Cth), nor to prove that they are entitled to be recognised as a native title holder. I adhere to those views and therefore I do not accept the submissions of the parties in this proceeding that the “narrowest formulation” of the Mabo (No 2) can be found in the reasons of Nettle J; nor that Nettle J’s reasoning is premised upon or involves the proposition that a non-citizen must prove they hold, or are entitled to hold, native title under the Native Title Act.

14    While that finding matters in terms of legal principle, and judicial method, it does not result in any different outcome for Mr Hirama on the facts as found (and, fundamentally, on the facts as agreed between the parties).

15    The critical matter to note here however, is that the Minister’s agreement goes no wider than an agreement that because the mutual recognition test in Mabo (No 2) applies in Mr Hirama’s circumstances to a community who are recognised as holding native title under the Native Title Act, then the Minister accepts Mr Hirama is an Aboriginal Australian and not an alien. I accept that is the extent of the Minister’s agreement. However, the Court is not therefore bound to confine its reasoning in principle to the Minister’s agreement and I have not done so.

16    This somewhat unusual circumstance produces the following outcome. First, I adhere to the views I have expressed in Helmbright and I take that approach to my fact finding in this proceeding. On that path of reasoning, I am satisfied that Mr Hirama is entitled to declaratory relief.

17    Second, if I am wrong in the approach I have taken in Helmbright, and the correct approach on the law as it presently stands is that a single judge must adopt and apply the additional criteria involved in a native title approach, then on that alternative path of reasoning I am also satisfied that Mr Hirama is entitled to declaratory relief.

Facts

18    The relevant personal history of the applicant is set out in the statement of agreed facts as follows:

The applicant was born on 28 December 1988 in Tauranga, New Zealand.

At the time of his birth, the applicant acquired the status of a New Zealand citizen pursuant to s 6(1)(a) of the Citizenship Act 1977 (NZ).

On 29 September 1992, the applicant first arrived in Queensland, Australia.

On 7 April 1995, the applicant departed Australia, and returned on 18 August 1995. Upon arrival, he was granted a Special Category (subclass 444) visa (the visa) pursuant to s 32 of the Migration Act 1958 (Cth) (the Act). The applicant has not departed Australia since then.

19    In Helmbright at [22], I explained the Special Category visas given to New Zealand citizens.

20    The agreed facts concerning Mr Hirama’s visa cancellation are as follows:

On 9 October 2017, the applicant was convicted of grievous bodily harm and sentenced to a period of imprisonment. On 15 November 2017, the visa was cancelled pursuant to s 501(3A) of the Act.

A delegate of the Minister refused to revoke the cancellation of the visa on 15 January 2019, and an application for review of the non-revocation decision in the Administrative Appeals Tribunal was lodged outside the prescribed timeframe in the Act.

The applicant was taken from criminal custody to immigration detention under s 189 of the Act on 6 September 2019.

On 17 September 2019, the applicant was issued with a Notice of intention to remove from Australia by the Australian Border Force.

On 2 October 2019, the applicant filed an Application for a constitutional or other writ in the High Court of Australia, claiming that the non-revocation decision was affected by jurisdictional error.

21    It is agreed that the applicant was released from immigration detention on 28 February 2020, and currently resides in South Hedland, Western Australia. He does not hold any visa granted under the Migration Act, and he remains a non-citizen.

The parties’ submissions

22    The parties’ submissions recognise that each member of the majority in Love/Thoms “reasoned to their Honours’ conclusions in different ways”. The Minister agreed with the applicant’s summary, which was in the following terms:

For Nettle J, Aboriginal Australians are not aliens because Aboriginal persons have so strong a claim to the permanent protection of the Crown in right of Australia, and consequently owe a permanent allegiance to the Crown, that their classification of aliens lies beyond the ambit of the ordinary understanding of the word. Gordon J expressed that the term aliens denoted a concept of otherness or being an outsider. Because Aboriginal Australians are the original inhabitants of the country, they are not outsiders to Australia.

Bell J noted the ‘sui generis’ position of Aboriginal Australians, noting that they ‘cannot be said to belong to another place’. Edelman J observed that it was an error of principle to define alien as a person who lacks the possession of statutory citizenship. His Honour said that the antonym of alien is not citizen but, rather, a ‘belonger’ to the politician community. His Honour noted that the ‘sense of identity that ties Aboriginal people to Australia is an underlying fundamental truth that cannot be altered or deemed not to exist by legislation’ (such as statutory concepts of citizenship).

(Footnotes omitted.)

23    The applicant submitted that, on the facts of the applicant’s case, it is unnecessary to consider anything other than what the applicant described as the “narrowest formulation of the tripartite test” in Love , and which he contends is that expressed by Nettle J. In Helmbright I have explained why I do not consider it appropriate to describe Nettle J’s approach as “narrow” or a “minimum” change to existing law: see [267]-[275]. I have also explained why I do not accept the Minister’s submissions that his Honour took a native title approach: see [176]-[189].

24    The Minister agreed that it is unnecessary to consider whether a “less stringent test might be sufficient” while maintaining his position (taken in Helmbright) that the minimum content of the tripartite test must accord with what the Minister submits is Nettle J’s understanding of the third limb of the tripartite test in Mabo (No 2).

The effect of the declaration

25    It is agreed between the parties, and has been borne out in the actions of the Minister releasing the applicant from immigration detention, that the effect of the declaration sought is that the applicant cannot be removed from Australia under s 198 of the Migration Act, and cannot be detained under s 189 of the Migration Act, although, as extracted below, the Minister included a qualification to this concession that “theoretically” the applicant could be detained under s 189 where an officer held a “reasonable suspicion” that the applicant was an alien. However, there remains a disagreement between the parties as to the continuing application of other aspects of the Migration Act to the applicant. The applicant submitted (citing Love/Thoms at [285]):

The consequence of the Applicant’s not being an alien is best expressed by Nettle J in Love. His Honour wrote that:

since the Migration Act imposes the liabilities of an alien on unlawful non-citizens, it is beyond the legislative competence of the Parliament under s 51(xix) of the Constitution to treat a member of such an Aboriginal society as an unlawful non-citizen, and that s 14(1) of the Migration Act must be read down accordingly under s 15A of the Acts Interpretation Act 1901 (Cth).

Because the Applicant is an Aboriginal Australian and is also a non-citizen, the relevant provisions of the Migration Act that purport to visit consequences on him because he is an ‘unlawful non-citizen’ are necessarily read down so as not to include him.

(Footnotes omitted.)

26    Section 14(1) of the Migration Act provides a definition of the phrase “unlawful non-citizen” for the purposes of the Act.

27    Curiously, given his otherwise complete embracing of the reasoning adopted by Nettle J, the Minister did not accept that the paragraph of Nettle J’s reasons extracted by the applicant above is a correct statement of the law concerning to the status of non-citizens who are found to be Aboriginal Australians.

28    Also curiously, the Minister’s asserted basis for this position is that the statement at [285] was not endorsed by other members of the Court. Of course, neither were any of the passages from his Honour’s judgment about the native title approach which the Minister contends flows from Nettle J’s reasons.

29    Nevertheless, the Minister pressed on and submitted that in this case

it is sufficient to say that as an Aboriginal Australian and non-alien, the applicant:

a)    is beyond the reach of the power in s 198 of the Migration Act to remove him from Australia; and

b)    will generally not be liable to detention pursuant to s 189 of the Migration Act. (The word “generally” is used because it is theoretically possible that the applicant could still be lawfully detained under s 189 because that section turns on the reasonable suspicion of an officer. Understood in accordance with Love; Thoms, that proposition would now effectively be limited to a reasonable suspicion that the person is an unlawful non-citizen who is an alien. If evidence could be adduced of such a suspicion in a particular case, the detention would remain lawful until facts came to light undermining the suspicion. That is a limited and theoretical possibility, but it should be mentioned for completeness.)

No additional questions, for example in respect of overseas travel or visas, are raised by the applicant in this case. No additional questions of reading down fall for determination in this case.

(Footnotes omitted.)

30    The effect of the declaratory relief granted in relation to Mr Hirama, insofar as his day to day life going forward as a member of the Australian community is concerned, may no doubt be a matter to be further explored between the parties. There is nothing further at present that the Court need determine.

Resolution

31    I have explained my reasoning about the ratio of Love/Thoms and the content of Brennan J’s approach in Mabo (No 2) in Helmbright at [104]-[111] and [135]-[214] and I adopt those passages as part of my reasoning in this proceeding.

First limb: descent

32    It is an agreed fact that the applicant is descended from a Nyul Nyul man named Malambor (also spelled Tjanganbor), who is an apical ancestor for the two determinations of native title made by North J at Beagle Bay, Western Australia: Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854.

33    In the Manado determination, three native title holding groups were recognised: the Jabirr Jabirr/Ngumbarl people; the Nyul Nyul people and the Nimanburr people: see schedule 3. In schedule 4 of the determination, the way each of the three groups hold native title in the determination area is set out, by reference to a map annexed to the determination. In relation to the Nyul Nyul People, scheduled 3 of the determination defines those native title holders as:

Nyul Nyul people are the living persons who are the descendants of one or more of the following ancestors, including by adoption in accordance with the traditional laws and customs of the native title holders:

Malambor (Tjanganbor); Ringarr Augustine; Alice Kotonel Wright; Bismarck; Kokanbor and Felix Nortingbor and Victor; Abraham Kongudu; Narcis Yumit, Peter Biyarr, Anselem and Patrick (brothers); Patrick Mouda; and Kandy.

34    The agreed facts trace the applicant’s descent from Malambor through the applicant’s maternal great grandfather, Matthias Dann, who was culturally adopted by Malambor’s son. The parties submit that the first limb is satisfied on this basis. I accept that submission.

35    I note the Minister accepts that “descent” need not mean strict biological descent but can include adoption in accordance with the traditional law and custom of a particular group. The terms of the determination itself also make this clear. That is the case for Mr Hirama’s ancestor, as the Nyul Nyul elder Mr Alec Dann explains in the letter extracted below.

The mutual recognition limb: self-identification

36    As I explained in Helmbright, in my respectful opinion, the correct way to understand Brennan J’s reasoning is that there is a second limb – the mutual recognition limb – which contains two aspects, each of which must be present for the recognition to be “mutual”. The term “mutual recognition” is the term used by Brennan J himself in this passage. A person must identify as a member of an Aboriginal or Torres Strait Islander group or community and that community must recognise the person as a member of their group or community. As I explained in Helmbright, in Brennan J’s Mabo (No 2) approach there are particular characteristics which must attach to the recognition of an individual – it must be by the “elders” of the group or community, or “other persons enjoying traditional authority amongst those people”. It is this aspect of the Mabo (No 2) approach which requires some fact finding about the nature of the authority exercised by those who engage in the mutual recognition process. On some of the other approaches (such as that of Deane J in Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1) the connection to traditional authority to decide inclusion or exclusion from a community or group is not express, and may not be required. The identification of the “community” which gives recognition may also be differently framed, but is probably still a community which identifies itself as connected to particular country: see Helmbright at [345]. Those are not matters for further discussion or decision in this proceeding.

Self identification

37    It is an agreed fact that the applicant identifies as a Nyul Nyul person. The agreed facts also state:

The applicant also identifies as ‘indigenous to this country’, ‘Yinjibarndi/Ngarluma’, that ‘Ngulma’ is the name of his tribe, and that he is ‘Nyul Nyul and [Nyikina] Mangala through his mother, and Yindjibarndi and Ngarluma through his aunty’ [Margaret Ramirez].

38    While it is not an agreed fact, it is also the case, and the Court can take judicial notice that, both the Yindjibarndi people and the Ngarluma people also have determinations of native title in their favour: see Yindjibarndi Aboriginal Corporation RNTBC v Western Australia [2020] FCA 1416; Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v Western Australia (No 2) [2017] FCA 1299; Samson on behalf of the Ngarluma People v Western Australia [2015] FCA 1438. However for the recognition limb in relation to Mr Hirama, the evidence is restricted to recognition of the applicant as a member of the Nyul Nyul people.

Community recognition

39    It is an agreed fact that the Chairperson of the Nyul Nyul PBC Aboriginal Corporation, being the registered native title body corporate under the Native Title Act for the Nyul Nyul people, has recognised the applicant as a member of the Nyul Nyul people and as a holder of native title. A letter from the chairperson was annexed to the agreed statement of facts. The applicant submitted that this was sufficient evidence that he meets the third aspect of the Mabo (No 2) test. A letter from another Director of the Nyul Nyul PBC, also admitted as an agreed fact sets out the line of descent, including by traditional adoption:

I, Alec Aloysius Dann, as an elder, a current Nyul Nyul PBC Director and a Named Applicant representing our Nyul Nyul Nation, write to confirm details of the genealogy of Mr Jonathon Hirama. Mr Jonathon Hirama is a Nyul Nyul man by identification, acceptance and descent.

Mathias Dann is Malambor’s grandson. Aloysius Duniji was Malambor’s son.

Eugenia Dimbadin (a Nimanbur woman) was the wife of Aloysius Duniji. Mathias is the biological child of Eugenia Dimbadin and an unknown man, and the adoptive child of Aloysius Duniji.

The cultural adoption of Mathias by Aloysius was complete. He is considered to be Aloysius’s son. Matthias is recognised as a Nyul Nyul person and the son of Aloysius Duniji.

40    It was not in dispute that Mr Dann is an elder of the Nyul Nuyl People. While he is also a Director of the Nyul Nyul PBC, his status as an “elder” of the Nyul Nyul people is conceded in the agreed facts. He was also a member of the applicant in Manado. I am satisfied Mr Dann is an elder in accordance with the traditional law and custom of the Nyul Nyul People.

41    The Minister submitted:

Especially given its status under the Native Title Act and the CATSI Act, the Nyul Nyul PBC is a body with authority to speak on behalf of the Nyul Nyul people about the membership of that group. It falls within the concept of elders or other persons holding traditional authority within the group. It also follows from the native title determination referred to above, that the group (and the Nyul Nyul PBC) enjoy that authority under laws and customs observed before Crown sovereignty in Australia.

42    I accept this submission. There could be no real debate but that a corporation in this situation could through its membership processes give the kind of recognition contemplated by the mutual recognition limb in Mabo (No 2). See also Helmbright at [296]-[302].

43    The Preamble to the Rulebook of the Nuyl Nuyl PBC states:

We are Nyul Nyul people, we come from strong and proud Nyul Nyul ancestors. Our connection to our country is through our ancestors. They have passed on the knowledge so we know our rightful place to sit down on country. Nyul Nyul ancestors have handed down our dreamtime stories, spoken the language to us, pointed out our family group connections, and sung our songs and danced our dances to us.

The fight for the rights to our country has now come to a close, a fight that many of our Nyul Nyul people before us worked hard and together to start. We are no longer displaced.

The rights of Nyul Nyul people as recognised in the determination over the land and waters identified within Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia (2018) FCA 854 include:

•    the right of possession, occupation, use and enjoyment of certain land within the determination area as against the whole world (exclusive possession);

•    the right to have access to, remain in and use the determination area;

•    the right to access and take for any purpose the resources of the determination area; and

•    the right to protect places, areas and things of traditional significance within the determination area.

Now, we begin another journey in setting up our Prescribed Body Corporate (PBC)

and Rule Book, to guide us in making fair and strong decisions that will protect and promote the rights and interests of all Nyul Nyul Native Title Holders in the determination area.

Nyul Nyul Native Title Holders are those Aboriginal people who hold in common, the body of traditional laws and customs concerning certain land and waters identified within Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia (2018) FCA 854. Those people are:

Nyul Nyul people, who are the living persons who are the descendants of one or more of the following ancestors, including by adoption in accordance with the traditional laws and customs of the native title holders:

Malambor (Tjanganbor); Ringarr Augustine; Alice Kotonel Wright; Bismarck; Kokanbor; Felix Nortingbor; Victor; Abraham Kongudu; Narcis Yumit; Peter Biyarr; Anselem and Patrick (brothers); Patrick Mouda and Kandy:

Nyul Nyul wombarinj yarrard.

(We are Nyul Nyul people).

(Original emphasis.)

44    Membership of the Nyul Nyul PBC is restricted to native title holders: see r 5.3.

45    The Nyul Nyul PBC holds the communal native title of the Nyul Nyul People on trust for the common law holders (see s 56(3) of the Native Title Act), being all those who fall within the terms of the Court’s determination of native title. The terms of the Court’s determination have been accepted and declared to reflect the membership of the Nuyl Nuyl People in accordance with their traditional law and custom. Together with the other evidence to which I have referred, there is ample evidence to satisfy the second aspect of the mutual recognition limb in Mabo (No 2).As I have explained in Helmbright, that is not to say a determination under the Native Title Act is required; but it may be one way of proving the elements of the mutual recognition limb.

46    Thus, whether on the approach I have decided in Helmbright is correct (being one which I have found accords with the ratio of Love/Thoms), or on the native title approach which both parties in this proceeding contend is correct, the evidence establishes that Mr Hirama is an Aboriginal Australian and is not an alien.

The form of declaration sought

47    The Minister submitted that the Court should provide relief in a particular form annexed to his submissions:

THE COURT NOTES THAT:

A.    The parties have agreed certain facts for the purposes of this proceeding, including that:

a.    the applicant is a biological descendant of the Nyul Nyul people of the Kimberly region of Western Australia;

b.    the applicant self-identifies as a Nyul Nyul man;

c.    elders of the Nyul Nyul people, being elders with authority under laws and customs observed since before the Crown’s acquisition of sovereignty, recognise the applicant as a Nyul Nyul native title holder;

d.    the applicant has not renounced his allegiance to Australia.

B.    The parties have further agreed that:

a.    The appropriate test for this Court to use to determine Aboriginality for the purposes of the aliens power in s 51 (xix) of the Constitution is that set out in Mabo v Queensland (No. 2) (1992) 175 CLR 1 at 70, as understood by Nettle J in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 94 ALJR 198 at [271], [278].

b.    It follows from the facts set out in recital A above that the applicant currently meets this test.

C.    Taking into account the parties’ agreement, the Court makes the following declaration.

THE COURT DECLARES THAT:

1.    The applicant is not currently an alien within the meaning of s 51(xix) of the Constitution.

THE COURT ORDERS THAT:

2.    The respondent pay the applicant’s costs of the proceeding, as taxed or agreed.

48    The Minister urged the somewhat unusual form of declaratory relief upon the Court with the following written submission:

The respondent further submits that the recitals proposed in the proposed short minute of orders are appropriate. They provide important and sufficient context to the making of the declaration. They will assist future parties dealing with the same issues, including by setting out clearly the legal basis for the Court’s factual findings in a formal Court order. The Court’s order will be readily available and, with the judgment, will provide appropriate guidance on the position of the parties (without needing to access the SOAF) and the views of the Court, for future cases.

49    It is clear that the party which urges the adoption of the recitals on the Court is the Minister. This submission indicates why.

50    In his written submissions, the applicant agreed to this form of relief:

The declaratory relief now sought reflects an agreement between the parties as to the appropriate form of relief (subject to the Court’s approval that such relief is appropriate). In essence, a declaration in the way framed confirms the Applicant’s position as a ‘non-citizen non-alien’.

51    The decision whether a particular form of declaratory relief is appropriate is a question for the Court. In BMI Ltd v Federated Clerks Union of Australia [1983] FCA 403; 51 ALR 401 Keely and Beaumont JJ said at 412:

It is well established that a declaration is a judicial act and ought not to be made merely on admissions of counsel or by consent, but only if the court is satisfied by evidence.

52    There is no dispute that the necessary evidence can be provided by way of an agreed statement of facts tendered pursuant to s 191 of the Evidence Act 1995 (Cth), although as Stone J noted in Minister for the Environment, Heritage and the Arts v PGP Developments Pty Limited [2010] FCA 58; 183 FCR 10 at [35] it “still remains for the Court to determine whether the facts are to be accepted as true and to determine what weight to attribute to that evidence”.

53    I do not accept that the recitals proposed by the parties are appropriate. The status of the recitals in a legal sense would be uncertain. That in itself is sufficient reason not to include them: there should be no uncertainty attaching to a declaration of the Court about the rights of the parties. In exercise of judicial power, the Court makes orders (including orders by way of declaratory relief) and gives reasons for those orders. The recitals occupy some halfway status between an order, and reasons for it. They do not reflect the Court’s reasoning, especially given my findings and conclusions in Helmbright.

54    The recitals are inconsistent with the Court’s primary reasoning for the grant of relief in favour of Mr Hirama. The primary reasoning is based on the analysis in Helmbright. A true alternative, which I have accepted can be adopted if my primary reasoning is incorrect, is the native title approach outlined by the parties in their submissions. On the basis of that alternative approach, it is nevertheless still appropriate for declaratory relief to be made in favour of Mr Hirama. In those circumstances, the declaration made needs to be understood in the full context of the Court’s reasoning.

55    Further, as the Minister’s submissions reproduced at [48] above tend to reveal, there is an element of the abstract or hypothetical which attends the inclusion of the recitals. By the recitals, the Minister is attempting to have the Court lay down a set of rules or prescriptions to be adopted in any potential (or actual) future litigation, which are intended to control the circumstances in which a non-citizen could successfully contend she or he is an Aboriginal Australian. That is not an appropriate exercise of judicial power, taking into account the well-known extract from Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 (at 582) that declaratory relief:

... is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court’s declaration will produce no foreseeable consequences for the parties”.

(Footnotes omitted.)

56    The Minister seeks to have the Court incorporate rules or prescriptions into the recitals, which strips them of their context in the Court’s reasons. He seeks to have those matters, which align with the Minister’s contentions about the limits of what can flow from the decision in Love/Thoms, elevated beyond findings and thus to have them available for future cases. This plainly contemplates the recitals can have an application to future proceedings, but any such application is presently abstract, and hypothetical. In my opinion, in addition to their uncertain status between orders and reasons for orders, inclusion of the recitals in the circumstances of this proceeding would bring the Court impermissibly close to the expression of an advisory opinion: see Re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257 at 265-267; Mellifont v Attorney-General (Qld) [1991] HCA 53; 173 CLR 289 at 303

57    Some of the asserted prescriptions are simply not in issue in this proceeding – such as the “renunciation” point. It would be inappropriate to include such matters at all, or to make findings about renunciation as that matter was simply not put in issue in this proceeding.

58    One additional difficulty with the proposed form is the insertion of the word “currently” into the proposed declaration. The reason for the inclusion of that word was explained by senior counsel for the Minister in oral submissions as relating to a number of circumstances where a person might be “in and out of alien status”. He referred to renunciation, to a person ceasing to identify as Aboriginal, or to a person being “thrown out” of the Aboriginal society with which they identify because of conduct such as marrying the wrong way and not according to traditional law and custom.

59    All of those matters were speculation on the part of the Minister, and, in fairness, clearly put that way. Declaratory relief should first, not carry any uncertainty if it can be avoided, and second, extend to abstract matters. The Court’s order declares the legal rights of the parties at the time the order is made. If, because of facts which arise after the making of an order, a party seeks to contend that, because of a change in factual circumstances, the declaratory relief no longer reflects the legal rights of the parties, that party can institute a proceeding seeking appropriate remedies. The Court would then make a decision on the evidence adduced before it. If, at some stage in the future, the Minister has justification to believe that Mr Hirama has acquired the status of an alien, the course which should be taken to deal with that change of circumstances (and whether it should include legal proceedings) would be a matter for the Minister and Mr Hirama to decide.

60    The declaratory relief should reflect the Court’s findings on the present evidence, including the agreed facts, no more, no less.

Conclusion

61    Declaratory relief will be granted, but not in the form proposed by the parties.

62    The Minister properly accepted it was appropriate there be a costs order in favour of the applicant. I agree that such an order is appropriate, since the applicant had to commence this proceeding, and establish the matters he has established, before any agreed position was reached. Declaratory relief about the non-alienage of a person, through a proceeding such as this, is also no doubt of significant utility to the Minister in the broader context of the working out of the effects of the decision in Love/Thoms.

Associate:

Dated:    15 June 2021