DECISION

Fair Work Act 2009
s.365—General protections (consent arbitration)

Andrew Roos
v
Winnaa Pty Ltd
(C2017/300)

Loretta Roos
v
Winnaa Pty Ltd
(C2017/302)

Bree Dargan
v
Winnaa Pty Ltd
(C2017/371)

Application to deal with contraventions involving dismissal – Respondent concedes contravention of s.351(1) – Respondent asserts exceptions in s.351(2)(b) and s.351(2)(a) –Reverse onus in s.361 does not apply – Evidentiary onus on Respondent – Multiple decision makers - Inherent requirements of Cultural Heritage Officer position – Whether there is an inherent requirement to be a Barada Barna person - Whether Respondent genuinely or honestly believed the Applicants were not Barada Barna – Substantive and operative reason for dismissal was failure to provide proof –Failure to provide proof not a positive conclusion that Applicants were not Barada Barna – Respondent fails to meet evidentiary burden to satisfy exception in s.351(2)(b) – Respondent fails to meet evidentiary burden to satisfy exception in s.351(2)(a) – Matter relisted for further submissions on remedy.

[1] In 1908 four children whilst playing in or near a creek outside the town of Nebo in Central Queensland were forcibly taken away to Barambah (now known as Cherbourg) approximately 800 kilometres south of Nebo by government authorities. One of those children was Kitchener Brown. The consequences of what happened that day continue to impact on Kitchener Brown’s descendants. 108 years later, on 29 June 2016 Dowsett J of the Federal Court delivered a consent determination in Budby on behalf of the Barada Barna People v State of Queensland (No 7) [2016] FCA 1271 (Consent Determination) granting native title to the Barada Barna people.

[2] This decision deals with a controversy that has arisen subsequent to the Consent Determination of Dowsett J, and for reasons that will become apparent involves an emotionally charged dispute about whether or not the decision of an employer to dismiss three employees was motivated by a genuinely held belief that the three dismissed employees were not Barada Barna people. An examination of that dispute is connected to the story of Kitchener Brown.

[3] In August 2016 Ms Loretta Roos, Mr Andrew Roos and Ms Bree Dargan made applications under section 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with General Protections applications involving dismissal in accordance with Part 3-1 of the Act. It was asserted in each of the three applications that s.344 and s.351 of the Fair Work Act 2009 had been contravened by their former employer.

[4] The matters were not resolved at private conference and s.368 certificates were issued confirming as much. Separate applications were filed by Ms Loretta Roos and Mr Andrew Roos on 18 January 2017 and Ms Dargan on 20 January 2017 for consent arbitration by the Commission. Bree Dargan is the niece of Loretta Roos and cousin of Andrew Roos.

[5] Each of the three applications identified the respondent as being the Barada Barna Aboriginal Corporation, however on 20 April 2017 I granted applications in all three matters which were not opposed, to amend the identity of the respondent to each application to be Winnaa Pty Ltd (the Respondent). The claims in relation to s.344 were not pressed.

[6] On 3 March 2017 A directions hearing was held where legal representation was granted to parties who sought leave, and directions where issued for the filing of material in the substantive matter with the matter to be heard on 23 and 24 May 2017. Subsequently, an interlocutory issue arose following an objection to the Respondent’s solicitors Dillon Bowers Lawyers continuing to act for the Respondent in the matter.

[7] Ms Roos’ representative sought a revocation order of the decision made on 3 March 2017 to grant leave for the Respondent to have legal representation. The kernel of the issue was not representation as such but representation of the Respondent by Dillon Bowers as it was asserted Dillon Bowers had a conflict of interest given its previous role acting in the native title application and subsequent Consent Determination in the Federal Court.

[8] On 5 June 2017 directions were settled for the filing of material and hearing of the revocation order application. Subsequent applications for separate orders for attendance and production in connection with the interlocutory hearing on 5 June were declined. In the course of the hearing on 5 June 2017 the Commission was advised that Dillon Bowers had decided to cease acting for the Respondent in the matters, and on that basis it was unnecessary for the interlocutory application to be determined.

[9] On 19 June 2017 costs applications were filed by Ms Roos against Winnaa Pty Ltd under s.375B and Dillon Bowers Lawyers under s.376. The costs applications have been adjourned pending the determination of the substantive applications.

[10] The Respondent appointed new solicitors Franklin Athanasellis Cullen to instruct Mr J Dwyer of Counsel. Further applications for orders for production of documents were made on 26 June 2017 by the representative of Ms Roos, and on 28 June by the representative of Ms Dargan. Orders for production were issued on 28 June 2017. Subsequent objections to the orders made were filed by the representative of the Respondent and following a hearing to deal with those objections a decision was issued on 27 July 2017 revoking the earlier orders. 1

[11] New directions were issued for the hearing of the substantive matter over three days on 27, 28 and 29 November 2017. On 15 and 16 November, following an application for orders to attend made by the representatives of Ms Roos, orders were issued requiring Mr Jarrod Brown and Ms Carmel Dargan respectively to give evidence at the hearing.

[12] Mr K Watson of Counsel instructed by Legal Aid Queensland appeared for Ms Loretta Roos and Mr Andrew Roos. Mr D Fuller of Counsel instructed by the Caxton Legal Centre appeared for Ms Bree Dargan and Mr J Dwyer of Counsel instructed by Franklin Athanasellis Cullen appeared for the Respondent. The three applications were heard concurrently and evidence in each matter was taken as evidence in the other matters. 2 By consent of the parties in the course of the substantive hearing a confidentiality order was issued concerning an exhibit in the proceedings.3

[13] At the conclusion of the hearing a timetable was agreed between the parties for the filing of closing written submissions. The Respondent subsequently sought an extension to file submissions which was granted and closing oral submissions were heard on Friday 6 April 2018 to accommodate the changed timetable.

Response to applications

[14] By way of background it is helpful to set out most of what the respondent said in its second amended response to the three applications. The responses were for all purposes the same. I have set out below parts of the second amended response to the application of Loretta Roos excluding the tracked changes;

“One of the reasons the Applicant was dismissed was because, despite numerous opportunities to do so, she was unable to establish an ancestral connection to the Barada Barna people to the satisfaction of the Respondents. At the time of making the decision to terminate, the Respondent genuinely held the view that the Applicant was not Barada Barna. Such connection is an inherent requirement of employment as a Cultural Heritage team member.

The Respondent has offered DNA testing to assist in the process. The Applicant has not responded to the proposal.

………………

FACTS

1. The Respondent acknowledges that the Applicant’s employment was terminated on 12 August 2016.

2. The Respondent acknowledges that termination of employment meets the definition of Adverse Action within the meaning of s 342 or the Fair Work Act 2009 (“the Act”).

3. The Applicant was terminated for a combination of reasons.

4. The Applicant commenced employment on 22 February 2016 as a Cultural Heritage Officer. The Applicant was employed as a casual employee and was provided with work as and when it was available.

5. By extension of indigenous ‘lore’ it is established policy and often a contractual requirement that persons filling the role of Cultural Heritage Officer are members of the Barada Barna people. This is an inherent requirement of the role because persons performing this work must inter alia be able to reliably and credibly identify artifacts (sic) and locations of cultural sensitivity.

6. At the time of employment, there were some doubts as to the authenticity of the Applicant’s ancestral connection to the Barada Barna people. Notwithstanding these doubts, the Respondent elected to give the Applicant the benefit of the doubt, subject to the ancestral connection being established later.

7. Numerous requests were made of the Applicant, either directly or to family members, to produce evidence of their ancestral connection. As at August 2016, no proof was produced.

8. In or about July/August 2016 a large amount of work that had been anticipated to continue for the remainder of the year was withdrawn. Consequently, as at early August there was no work available for the Applicant, and none available for the foreseeable future.

9. It was considered that this was an appropriate juncture to bring the ancestral heritage issue to an end.

10. Consequently given the failure of the Applicant to establish ancestral connection (despite multiple requests), the Respondent formed the view that the Applicant was not Barada Barna and the Applicant’s employment was terminated.

THE ALLEGED CONTRAVENTION

11. The Respondent concedes that it has contravened s.351(1) of the Act.

12. The Respondent acknowledges that, inter alia, that Applicant was dismissed because the Respondent formed a view that she was not Barada Barna when she was unable to establish an ancestral connection to the Barada Barna people to the Respondent’s satisfaction.

13. The Respondent denies that this amounts to discrimination on the basis of “social origin”.

14. The term “social origin” is not defined in the Act. It is widely regarded as referring to socio-economic demographic. It has no application to the Applicant.

15. The term “national extraction” is not defined in the Act. It is conceded that it applies to whether a person is Barada Barna or not and therefore it has application to the Applicant.

16. Notwithstanding that s.351(1) does apply to the Applicant and has been contravened by the Respondent, the conduct of the Respondent is excluded from the prohibition on discrimination by virtue of s.351(2)(b).

ALTERNATIVE DEFENCE

17. Subsection 351(2)(a) of the Act provides that where the relevant action is not unlawful under any anti-discrimination law in force in the place the action is taken, subsection 351(1) will not apply to that action.

18. Section 104 of the Anti-Discrimination Act 1990 (Qld) (AD Act) relevantly provides that a person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with the AD Act.

19. The Applicant was dismissed in accordance with the Respondent’s policy to only employ Cultural Heritage Officers (CHOs) who have satisfied the Respondent that they are members of the Barada Barna Nation. The purpose of the policy is based in indigenous ‘lore’, which as applied in this case, meant that only Barada Barna People may conduct the important work of a CHO on Barada Barna Country on behalf of the Barada Barna People.

20. The act of dismissing the Applicant because she had not satisfied the Respondent that she was a Barada Barna person was an act done for the welfare of the members of a specific group (the Barada Barna People), which is not unlawful under section 104 of the Anti-Discrimination Act.

21. The Applicant’s dismissal was not inconsistent with the AD Act either because it was done to preserve the cultural integrity of the Barada Barna People and the Barada Barna Nation.

22. Accordingly, not only was the dismissal lawful by virtue of it being because of the inherent requirements of the Applicant’s position (s 351(2)(b)) but it was also lawful by virtue of being lawful under the AD Act.”

[15] It is clear from the responses that the Respondent admitted it dismissed the Applicants from their employment, and their dismissal was adverse action within the meaning of s.342(1) of the Act. 4 The Respondent also admitted that the dismissals were because of the Applicants’ national extraction which is an attribute named in s.351(1) of the Act.5

[16] It is not in dispute that the decision to dismiss occurred on 11 August 2016 and that decision was subsequently communicated to the Applicants on 11 and 12 August 2017. The parties have consented to arbitration in accordance with s.369 and the statutory tests for the arbitration to proceed have been met.

Witnesses and written submissions

[17] The Applicants’ cases included six witnesses in total that filed statements in the matter. Ms Loretta Roos, 6 Mr Andrew Roos,7 Mr Gavin Brown,8 Professor Emma Kowal,9 Ms Bree Dargan,10 Mr Les (Charles Budby).11

[18] Mr Andrew Roos, Mr Gavin Brown, Ms Emma Kowal and Ms Bree Dargan were not required for cross examination.

[19] Ms Carmel Dargan’s was ordered to attend to give evidence and did so on 27 November 2017. Ms Carmel Dargan said she had been reluctant to give evidence however changed her mind having seen the statements of witnesses for the respondent. 12

[20] Loretta Roos and Andrew Roos filed an outline of submissions 13 reply submissions,14 closing written submissions15 and closing written submissions in reply.16 Bree Dargan filed an outline of submissions,17 submissions in reply,18 closing written submissions19 and closing written submissions in reply. 20

[21] The Respondent’s case included five witnesses who provided statements. Mr Graham Stanley Budby, 21 Mr Cecil Albert Brown Junior (also known as Pickle)22, Mr Gregory Brown, 23Ms Luarna Mitchell24 and Mr Jarrod Brown25.

[22] An outline of written submissions was filed by the respondent on 1 November 2017 and closing written submissions on 2 March 2017.

EVIDENCE

[23] Ms Loretta Roos gave evidence that she held a Cultural Heritage Field Officer position (CHO position) with Winnaa Pty Ltd, but prior to that the CHO position was with two other entities that were controlled by the Barada Barna people, namely Woora Consulting Pty Ltd (Woora) and Windbrake Pty Ltd (Windbreak). 26Loretta Roos said Woora carried out cultural heritage work for the Barada Barna Charitable Trust (the BBCT),27 and the current shareholders of Woora are Mr Graham Budby, Ms Stacey Kreyts and a company called Woora Nominees Pty Ltd (Woora Nominees). Ms Roos said Mr Frank Budby was also a beneficial shareholder.28Loretta Roos said that the BBCT was established by trust deed dated 12 March 2010.29 Ms Roos said the Trustee for BBCT is Barada Barna Ltd.30

[24] Loretta Roos said that when she started with the Respondent there were three directors: Mr Gregory Brown, Mr Cecil Brown Junior, and Mr Les Budby. However Ms Roos said that Les Budby removed himself as a director in August 2016 when Ms Roos was dismissed. 31

[25] Loretta Roos said that she understood that the Respondent’s Board of directors did not have Board meetings to decide issues as all decisions relating to the Respondent were made by the BBCT Board and/or the Barada Barna Aboriginal Corporation (BBAC) Board. 32

[26] Loretta Roos said that the BBAC was registered with the Office of the Registrar of Indigenous Corporations (ORIC) on 19 January 2016. Ms Roos provided a copy of the ORIC Corporation extract dated 1 March 2017 which included the list of directors at the time. Loretta Roos noted that her name appeared on page 18 on the list of BBAC members. Loretta Roos said this was after she had completed two forms, a Confirmation of Aboriginality of Barada Barna Identity form, and a Schedule 4 – Application for membership form. Ms Roos provided copies of both forms. 33

[27] Loretta Roos said that it was Les Budby in his capacity as a director of the Respondent who reported to the Board and all decisions relating to the operations of the Respondent were made by the BBAC Board including recruitment and termination of employees. Ms Roos said she understood only members of the BBCT Board could authorise payment of wages for ‘the Respondent’s employees. 34

[28] Loretta Roos’ grandmother’s name was Ms Cora Attenborough and her grandfather was Kitchener Brown. Her mother’s name was Eileen Kerr (nee Brown). Her maiden name is Kerr but her married name is Roos. Her father’s name is Klauss Bormann. Christine Kerr is her twin sister. Colleen Kerr is her older sister. Paul, Karl, Robbie and Kurt Mikkelsen are her brothers.

[29] Loretta Roos said Kitchener Brown was always considered a Barada Barna man. Kitchener Brown was listed as an apical ancestor on a number of previous Barada Barna native title claims. 35 Loretta Roos said that Kitchener Brown was the son of Lizzie Payne and Lizzie Payne is listed as an apical ancestor on the Federal Court consent determination.36

[30] Loretta Roos said that Albert ‘Bully’ Brown (deceased) was her mother’s brother and was her blood uncle and he was one of the people comprising the applicant in previous native title claims. 37

[31] Loretta Roos said that the BBCT authorised her to receive the ‘Elder payment’ (a consequence of being the representative of the family). Ms Roos said she has received numerous such payments of around $1500 a year. 38

[32] Mr Andrew Roos said that he is a Barada Barna man through his mother Loretta Roos. 39 He said he started working for the Respondent Winnaa (then called Woora) as a CHO. He said he got the position through his mother, who was contacted by her cousin Carmel Dargan. He said he was in the position until 12 August 2016 when he was dismissed.40

[33] Andrew Roos said he was a Barada Barna man and he was performing the duties of the position without any issues. He said his granduncle Mr Albert Brown, was an applicant on previous applications for native title made by the Barada Barna people. He said he had always understood their connection to Country was established through Kitchener Brown, who is the descendent of Lizzie Payne. 41

[34] Ms Bree Dargan is the other Applicant. Bree Dargan said her parents are Shirley Anne Dargan and Timo Peltohaka. She said her mother is Aboriginal but her father is not, and her mother’s parents were May (“nanna”) and Frank Dargan and they had 13 children who are spread all over Queensland. 42 Carmel Dargan, who was a director of BBAC, is her Aunty.

[35] Bree Dargan said that it was not until 2008 that she remembered learning about what country her ancestors had come from. She said she learned about her grandmother’s father, Kitchener Brown. Ms Bree Dargan said she learned about Kitchener Brown because his remains were exhumed and returned to his Country. Bree Dargan said she is Barada Barna through her descent from Kitchener Brown. 43

[36] Bree Dargan said she got a lot of information about Barada Barna through her Aunty Carmel Dargan. Bree Dargan after becoming a member said she started to attend information sessions in 2014, 2015 and 2016. Bree Dargan said topics of discussion included jobs going with the mining companies on Barada Barna land, social policy funding, Indigenous Land Use Agreements, and Widi claim and other native title matters. 44

[37] Carmel Dargan said that her descent as Barada Barna stemmed from 1998 when Greg Brown’s father Norman Brown approached her to be a research officer for the Birri-Gubba nation. Ms Carmel Dargan said they did not affiliate with her mother’s side who comes from Burketown, the Gangalidda side, and her father was from the Northern Territory. 45

[38] Carmel Dargan said she first worked as a research officer with Seleste Walsh. Carmel Dargan said Seleste Walsh is the daughter of Linda Budby, or Linda Walsh Barlu and her sister is Luarna Mitchell who is on the BBAC Board. Carmel Dargan said she and Seleste Walsh worked together as research officers travelling from Charters Towers, Townsville and Rockhampton interviewing elders regarding their connection to Country. 46

[39] Carmel Dargan said that Seleste Walsh’s great grandmother was Maggie Barker and Carmel Dargan and Seleste Walsh went to visit Seleste’s grandmother Nanna Ida Buckley in aged care in Charters Towers. Carmel Dargan said Nanna Ida Buckley said her brother was Kitchener Brown, so there was confusion with Maggie Barker’s side. Ms Carmel Dargan said she obtained a 1998 report from anthropologist Rosemary O’Grady that stated Lizzie Payne had two sons, grandfather Kitchener Brown and Grandad Albert.

[40] Carmel Dargan said she had never heard use of the words “community brother” or “community brothers”, or conditional or provisional acceptance as Barada Barna. 47

[41] Later in her evidence Carmel Dargan agreed that the reference to Nanna Ida was a reference to Nanna Ida Darwin. 48 Carmel Dargan said Seleste Walsh provided a report of the interview with Nanna Ida Darwin where she stated she was Kitchener Brown’s sister to Mr Jeff Dillon of Dillon Bowers Lawyers. Carmel Dargan said she did not know if Nanna Ida was related to Lizzie Payne or Maggie Barker.49

[42] Carmel Dargan said Nanna Ida Darwin was being interviewed because the Birri-Gubba Nation Board (including Uncle Frank Budby) sent around research officers to interview people on their side. 50

[43] Carmel Dargan said she was director of the BBAC from 2013, and officially from 2014 and continued to be a director until the meeting of 11 August 2016. 51 During her evidence Carmel Dargan was taken to paragraph 11 of a statement she made for the Federal Court proceedings which read as follows:

“..The only way a person can be a Barada Barna person is through bloodline and ancestry. You can’t just become a Barada Barna person. You have to have the bloodline connection.”

[44] Carmel Dargan appeared to indicate she agreed with that statement. 52 Carmel Dargan accepted as a hypothetical proposition that if it could be proven conclusively that Kitchener Brown was a descendant of a different group that she was not part of the Barada Barna.53

[45] Mr Les Budby gave evidence he is a Barada Barna elder and until recently a director of the BBAC, Winnaa, and the BBCT. He said he had known Loretta Roos for a number of years and from October 2016 until October 2017 was in a relationship with her. 54

[46] Les Budby said many families in the region were forcibly removed and dispersed all over the place. He said it is obvious to him that there are many people out there who are Barada Barna people by descent but who do not know where they come from, and this is one of the tragedies of the stolen generations. 55

[47] Les Budby said he had never heard of any provisional or conditional recognition as Barada Barna and a person is either recognised or not. He said he had never heard of a family being accepted as Barada Barna subject to providing proof. He said it can be complicated and referred to the example of Maggie Barker and some of his family believing she was Wiri, and some believing she is Barada Barna. He said sometimes investigation provides an answer and sometimes it does not. 56

[48] Les Budby said Greg Brown dominated the BBAC Board and got his way by securing the votes of those he held influence over such as his son Jarrod Brown. He said there was an alliance involving Greg Brown, Cecil Brown Junior, Graham Budby, and before their disagreement, Gavin Brown. Les Budby said evidence of this can be seen from the conduct of the Board on 11 August 2016 when he, as one of the three directors of Winnaa, project manager of Winnaa and site supervisor on the ground, had no involvement or discussions regarding the dismissal of the Applicants. 57

[49] Gavin Brown said all decisions relating to the companies associated with the BBAC were controlled by the BBAC Board, and Greg Brown and Cecil Brown Junior controlled the BBAC Board through an alliance they had. Gavin Brown claimed the alliance consisted of Greg Brown, Cecil Brown Junior, Jarrod Brown, Graham Budby and Luarna Mitchell. 58 Gavin Brown also claimed that there was a rule that if a director removed a member of their family line then the other Board members (each representing a different family) did not ask questions or object.59

[50] Gavin Brown said there was only one occasion when Greg Brown overruled the Board, and this matter involved the dismissal of Gavin Brown’s son Steven Brown. Gavin Brown gave evidence to the effect that when Greg Brown failed to convince the BBAC Board to dismiss his son they then said the decision was not the BBAC Boards to make as Cecil (Brown Junior) and himself were the directors of Winnaa and the decision was theirs alone and Steven Brown was dismissed. 60

[51] Gavin Brown claimed Greg Brown had an agenda to intimidate him because he introduced another family member to the BBAC who Greg Brown did not approve of. Gavin Brown said Greg Brown also dismissed his other son. 61

[52] Mr Graham Budby gave evidence that he is a Barada Barna elder and has known he is a Barada Barna person since he was very young as his father told him. He said his apical ancestor is Polly Mary (wife of Robert Noble and Bert Fox). He said he is also a blood descendant of apical ancestor Maggie Barker. He said he has been a Board member of BBAC and the BBAC treasurer since July 2016. 62

[53] Graham Budby’s evidence included that when he first started doing cultural heritage work in 1996, Barada Barna CHO’s were assisted by non-Barada Barna elders because they did not have a sufficient number of trained workers to do the work required. Graham Budby said his father, as a Barada Barna elder, had authority to invite people onto Country to do cultural heritage work. He said for the same reasons, his father again invited non-Barada Barna persons onto Country in the early 2000’s to assist in cultural heritage work. 63 He said the non-Barada Barada persons were Aboriginal persons. He said information was shared with archaeologists who were white people.64

[54] Graham Budby said to the best of his recollection, with the exception of archaeologists, he did not believe that non-Barada Barna persons have been invited onto Country to assist with cultural heritage work since around 2005. 65 He said that this changed because there were more younger Barada Barna people coming through. He said in the course of a year, between eight and twelve cultural heritage workers would be employed on Barada Barna Country, and 24 during the (mining) boom. He repeated that no non-Barada Barna had been employed since 2005.66

[55] Graham Budby gave evidence that his father shared with him that to be a Barada Barna person you must be related, by blood, to an apical ancestor. He said the apical ancestors are named in the Consent Determination. 67

[56] Graham Budby said the Barada Barna people do not recognise kinship or adoption and that this has always been the case. He said any recognition to an individual or family line that are yet to prove their blood relationship to an apical ancestor is only provisional recognition and the individual or family line must provide proof of their blood connection to an apical ancestor. 68

[57] Graham Budby referred to paragraph 7 of his 2015 statement to the Federal Court and affirmed his view that if it is found or the general view is formed that someone does not have the correct descent lines, they may cease to be recognised as a Barada Barna person, and this was the case for the descendants of Kitchener Brown. 69

[58] Graham Budby accepted that the ten apical ancestors named in the Consent Determination were the only ones named because they were the only ones where a connection on the anthropological evidence could be established at that time. 70 He accepted that the size of the Barada Barna nation was reduced over time including by external factors including massacre, pastoralists, and disease. He also accepted that anthropological evidence establishes that the Barada Barna people were scattered throughout Queensland if not Australia by for example, forced removal and otherwise through events known as the stolen generation.71 He agreed that the forced removal at Nebo in 1908 of the four children including Kitchener Brown was one of those events.72

[59] Graham Budby accepted that the reason he gave for the Barada Barna people not recognising adoption because of it creating division within the ten families was a recent reason. 73

[60] Cecil Albert Brown Junior (Pickle) gave evidence that he is a director of the BBAC and of the Respondent. He said he is a Barada Barna elder and was one of the two applicants in the Federal Court proceedings which resulted in the conferring of native title rights. He said he is a descendant of Lizzie Payne, his grandfather’s (Albert Brown) mother.

[61] Cecil Brown Junior said that if a new applicant (for membership of BBAC) says they are Barada Barna, they must satisfy the Barada Barna people that they are a blood descendant of an apical ancestor. Cecil Brown Junior gave a range of reasons as to why he believed the Kitchener line were not Barada Barna including discussions with his father, a lack of proof, the anthropological and genealogical expert reports and discussions with Delray Budby. Further, he said given the circumstances in which Kitchener Brown was forcibly removed from Nebo creek; Kitchener may have been confused as being a Barada Barna person. 74

[62] Cecil Brown Junior gave evidence about discussions with his father Cecil Noel Brown (Chum) and his father. 75 Cecil Brown Junior said that he was sceptical about Carmel’s claim (about having proof of connection) because when he obtained copies of his grandfather’s birth certificate and marriage certificate, he kept an electronic copy and made eight hard copies.76

[63] Cecil Brown Junior appeared to accept the proposition that a person forcibly removed as a child might not have any documents showing their ancestry, and might not know very much about their ancestry. He agreed that there are other current members of the BBAC who haven’t provided documentary proof of connection, and he was not aware of any current proposal to cancel their membership. 77

[64] Cecil Brown Junior said that because of lack of records and because Nebo was a trading town, in his mind, he though it quite possible that Kitchener and/or Daisy had been passing through the area with their families when they were taken from the side of the Nebo creek in 1908. He said he thought the confusion over Kitchener’s origins could have been further compounded by the fact that all four children taken from Nebo creek in 1908 were “given” the surname (Brown). He said as well, he understood that all four of those children were associated with Barada Barna people because Grandfather Albert and Grandpa Norman were both definitely Barada Barna. 78

[65] Cecil Brown Junior was taken to his statement for the Federal Court where he said “The elders know all the generations in detail and would not be fooled by someone wrongly claiming to be one of us.” 79 He was then taken to his father’s statement for the Federal Court where his father said he learned about his identity as a Barada Barna person from his dad and his uncles, Norman and Kitchener. He appeared to accept that some of his knowledge about being Barada Barna came from Kitchener Brown.80

[66] It was put to Cecil Brown Junior that it didn’t matter to his father whether Kitchener Brown was biologically related to an apical ancestor for him to be recognised as Barada Barna. He responded that Kitchener would have been recognised as coming from Barada Barna Country. He did not agree with the proposition that would make him a Barada Barna person in his father’s eyes. 81

[67] Cecil Brown Junior said that to be a Barada Barna person you must be related by blood to a person who is recognised by all Barada Barna people as being an apical ancestor. He said this rule was passed down to him long before the Federal Court proceedings. He said the BBAC keep to this rule because they have seen in the past other claim groups where non-family members have come in and destroyed the tribe. 82 He said they do not accept adoption, which is different to the Widi people, and this is reflected in the Consent Determination.83 Cecil Brown Junior also said that the BBAC does not go by adoption for eligibility because it could lead to too many people wanting to join their claim group.

[68] Gregory Stephen Brown (Greg Brown) gave evidence he is the chairperson of the BBAC and a director of the Respondent, Winnaa Pty Ltd. He said he is a Barada Barna person descended from Maggie Barker, an apical ancestor named in the Federal Court’s consent determination. 84 He explained that following the Consent Determination the BBAC became trustee of native title for the Barada Barna people. He said the purpose of the BBAC was to preserve the culture, health and wellbeing of the Barada Barna people and provided a copy of the BBAC Rule Book with his evidence.85

[69] Greg Brown said that based on the knowledge that has been imparted to him by his father and other Barada Barna elders, he knows it to be true that to be a Barada Barna person you must be related by blood. He said elders pass down information to younger generations about where people are from, and it is unusual to not know where you come from and who your ancestors are. Greg Brown said that the apical ancestors are named in the Consent Determination, however the belief that Barada Barna must be related to an apical ancestor predates Consent Determination, and a person must be a blood descendent of an apical ancestor to get the benefits of Barada Barna membership.

[70] Greg Brown said that Barada Barna people do not recognise kinship (adoption) as effectively making a person a Barada Barna person. The Consent Determination states that Native Title Holders for “the Barada Barna people are the descendants of one of more of the following people…”. Greg Brown said a person may be given collective recognition as a Barada Barna person but they must also provide proof of their blood connection to an apical ancestor.

[71] Greg Brown said if traditional owners of other lands wish to come on Barada Barna Country they must seek permission, and Barada Barna people seek permission to go onto another person’s country. Barada Barna people use the terms “brother”, “sister”, “Grandad”, “Grandma”, “Aunty” and “Uncle” to describe biological and non-biological relationships. 86

[72] Greg Brown accepted that his father believed Kitchener Brown was a Barada Barna man, or recognised him as a Barada Barna man despite knowing that he was not biologically related to an apical ancestor. 87

[73] It was put to Greg Brown that the report of anthropologist Dr Lee Sackett said he was inclined to the view that Maggie Barker likely was Wiri rather than Barada Barna. Greg Brown referred to the Federal Court Consent Determination but accepted the report expressed a different view. 88

[74] Greg Brown said in or around December 2015 the BBAC established a separate entity Windbrake Pty Ltd to undertake cultural heritage work on behalf of the Barada Barna people, and in around February 2016 changed the name of that entity to Winnaa. He said Winnaa reports to the BBAC and the Board oversees the activities of Winnaa, and the Board decided on the recruitment and termination of Winnaa employees engaged in cultural heritage work. 89

[75] Greg Brown said that as recognised in the Consent Determination, the Barada Barna people have occupied the Country described as the determination area since ancient times. He said to be a Barada Barna person you must be connected by blood to an apical ancestor, and the apical ancestors are listed in Schedule 3, Part 1 of the Consent Determination. He said the requirement to be related to an apical ancestor is contained in their Rule Book at clause 5.1. 90 Greg Brown said there was no alliance between himself and other directors of the BBAC.

[76] Luarna Mitchell (nee Walsh) gave evidence that she is a director of the BBAC, and that she is descended from Maggie Barker whose daughter is Ina Darwin, her great grandmother, and Charles Budby (father of ‘Saltbush’ George Budby) who is her great, great, great grandfather. 91

[77] Jarrod Brown gave his evidence via telephone from the Woodford Correctional Centre. He said he was a director of the BBAC from in or around mid-2016 to on or about 20 October 2017. He said he is a Barada Barna man through his father Greg Brown, his grandfather Norman Brown, descendants of Maggie Barker. 92

[78] Jarrod Brown said that he had been told by his father and directors of the BBAC that to be a Barada Barna person, you must be born into a Barada Barna family and have a blood relationship to an apical ancestor. 93

Early work on native title

[79] Les Budby said that he had been involved in Barada Barna cultural heritage work for approximately 20 years, and was the ‘Applicant’ on a previous BBKY4 (Barada Barna, Kabalbara, Yetimaria) native title claim as well as the Barada Barna claim.

[80] Les Budby said on the BBKY4 application, there was a meeting in Rockhampton in around 2000 and Uncle Albert “Bully” Brown was representing the Kitchener Line. He said only Uncle Frank Brown and Uncle Bully Brown were involved at the time and he had no idea of the extent of the Kitchener Line until Carmel Dargan told the BBCT. 94 He said Carmel Dargan raised concerns about her side of the family not being involved in the claim and following a meeting in Townsville, Carmel Dargan was accepted onto the BBCT Board. Greg Brown was also admitted at this time to represent his family.95

[81] Les Budby said he recalled one time around 2006 before the BBKY4 native title claim was registered that he was approached by Uncle Norman Brown, Greg Brown’s father, and Uncle Frank. He said they asked him if his family would claim Maggie Barker as their apical in order to strengthen the Brown connection to the claim, instead of their proven connection through Saltbush George. He said this was when there was conflict with the Wiri over whether Maggie Barker was Wiri or Barada Barna. He said prior to the Barada Barna claim being registered, Saltbush was their Barada Barna apical, and Maggie Barker was their Wiri apical. 96

[82] Les Budby said the Barada Barna people were originally assisted by South Queensland Land Council (SQLC) in the native title claim. He said he recalled attending a meeting with SQLC in Brisbane with Uncle Frank, Cecil Brown Junior, Peter Gore and Jeff Dillon, as well as the SQLC lawyer and two anthropologists. He said SQLC called the meeting because it was not content with Maggie Barker and Kitchener Brown being included in the native title application as apicals, and they would only assist with the claim if they were removed.

[83] Les Budby said Frank Budby was a senior elder, and knew a lot about family connections to Barada Barna. Les Budby said he was one the Applicants on the claim and a significant leader of the Barada Barna, and he felt Maggie and Kitchener were connected, so along with support from himself and Cecil Brown Junior they decided to part ways with SQLC and instruct Jeff Dillon to act in the native title claim. He said they then sought their own anthropological evidence to support the inclusion of Maggie and Kitchener resulting in the Gorecki and McLean reports. 97

2008 Kitchener Brown’s repatriation to Country

[84] Cecil Brown Junior said that in 2008, his Uncle Norman (son of Grandpa Norman) asked him to take over from him with the arrangements for removing the remains of Uncle Kitchener Brown from Kingaroy to Nebo. He said his father (Cecil Noel Brown also known as Chum) was the only person to attend Kitchener’s burial in Kingaroy in 1959. Cecil Brown Junior said in or around 2008 his father and he went to Kingaroy to oversee the exhumation of Kitchener’s remains. He said they arranged for Uncle Kitchener’s remains to be buried in Nebo Cemetery and for a plaque to be erected by the banks of the creek where he, Grandpa Norman, and his Grandfather Albert were taken.

[85] Cecil Brown Junior said at that time they were under the belief that Kitchener Brown was a Barada Barna person. He said it was not until they started asking all family members for their proof of descendancy that doubts about whether Kitchener Brown was Barada Barna were raised. He said that in hindsight, had they known back then that Kitchener was not a blood relative, they would not have taken him back to Country. 98

[86] Loretta Roos also gave evidence about Kitchener Brown being repatriated to Country in 2008 and the importance of this, and provided evidence of media coverage at the time. 99

[87] Greg Brown said that his father Norman Albert Brown told him words to the effect:

“Uncle Kitchener died in a pauper’s grave in Kingaroy. No one went to his funeral – none of his family members went, only Chum. I promised my dad that I would bring Uncle Kitchener back to Country – from the land which he was taken from and give him a proper burial.”

[88] Greg Brown said “Chum” was a reference to Uncle Cecil Brown (Snr), son of Grandad Albert Brown who was forcibly relocated to Barambah with Grandad Kitchener, Grandma Daisy and his grandfather Norman. Greg Brown said because his dad made this promise to his father, his dad arranged for Uncle Kitchener’s remains to be repatriated, and this occurred in 2008. Greg Brown said this was well before his enquiries about whether Kitchener was Barada Barna and before the research for the native title claim was undertaken. 100

Early questioning about Kitchener line

[89] Cecil Brown Junior said that in around 2012 the Board started asking the Kitchener line for proof of their relationship to an apical. He said it was around this time that he recalled Carmel Dargan saying words to the effect of; “Our apical is Maggie Barker”. Cecil Brown Junior said that in response to Carmel Dargan asserting she was descended from Maggie Barker at a number of Board meetings, he along with other Board members including Graham Budby, Greg Brown and Les Budby asked questions of Carmel including asking for evidence, or whether she had birth certificates or other documents that would satisfy them about being Barada Barna. Cecil Brown Junior claimed that Carmel Dargan said that she had proof and had given it to research with Rosemary O’Grady. 101

[90] Cecil Brown Junior also said that sometime around 2014, he had a discussion at a motel in Mackay with Uncle Norman (apical Maggie Barker’s grandson), Uncle Frank Budby and his dad about Kitchener Brown. He said he recalled words to the effect said by his father that Grandad Kitchener, Grandad Norman and his dad Albert were not blood brothers but they were community brothers taken from the same area but not biologically related. 102

[91] Cecil Brown Junior said that following the discussion with Uncle Norman and Uncle Frank, he asked his father if he knew about his Uncle Bully saying that Uncle Frank Brown was adopted, and his father told him that at some stage, “Bully” was talking to Uncle Frank, Uncle Norman and himself when Bully said his father (Kitchener) was from the Gulf, the Northern area, up near Normanton.

[92] Cecil Brown Junior said he understood his father’s reference to “Bully” was to Albert Brown, son of Kitchener Brown, and that he believed his father believed that Kitchener, Albert and Norman were not blood brothers but community brothers. 103

[93] Cecil Brown was referred to the statement of Albert Norman (Bully) Brown prepared for the Federal Court and paragraphs 3, 23, 43 and 44 of that statement where Albert Norman (Bully) Brown discusses himself and his father being Barada Barna. It was put to him that he may have misremembered what his father had told him. He rejected that proposition. 104

[94] Greg Brown said that his father Norman Albert Brown told him about his father Norman Barker renamed Norman Brown being taken to Barambah. Greg Brown said his father told him words to the following effect:

“In 1908, Grandad Albert, Grandad Kitchener, Grandma Daisy and your Grandfather Norman Barker were playing near the Nebo River when the authorities collected them and forcibly relocated them to Barambah (now known as Cherbourg).

At the time Grandad Kitchener, Grandad Albert and Grandma Daisy were about 8 years old and your grandfather Norman was around 12. When they arrived in Barambah they were given the surname Brown because of their skin colour. So our surname should be Barker not Brown.

When the children told others they were taken from Nebo, they gathered with Barada Barna people who had also been relocated to Barambah.

Grandad Albert’s mother was Lizzie Payne.

We don’t know who Grandad Kitchener’s or Grandma Daisy’s parents are. Grandad Kitchener was not from our country.” 105

[95] Greg Brown said approximately ten years ago, he recalled a discussion that he had with his father, and his father said words to the effect of “Dad, Kitchener and Albert were community brothers.”

[96] Greg Brown said he understood that to mean they were not biologically related. Greg Brown said about three to five years ago he recalled a discussion he had with his father and his step mother Judy, where his father said words to the effect:

“Bully said to me and Judy that his mum and dad were from the Gulf Country and that he knew that Kitchener, Albert and Norman were not biologically related, they were community brothers because they were taken from Nebo together.”

[97] Greg Brown was referred during cross examination to a statement of Albert Norman (Bully) Brown of 18 March 2015 made for Federal Court proceedings, and various parts of the statement where Albert Norman (Bully) Brown gave evidence his father Kitchener Brown was a Barada Barna man, and was from Nebo. It was put to Greg Brown that he may have misremembered what his own father had told him and he denied that. 106

[98] Greg Brown said he remembered in or around 2013 being present at Board meetings when Carmel Dargan was asked who her ancestor was and she responded Maggie Barker, because she was the mother of her grandfather Kitchener Brown. Greg Brown said he thought that was very interesting because he is descended from Maggie Barker himself. He said at a Board meeting whilst Carmel Dargan was present he subsequently produced Maggie Barker’s death certificate that listed her three children that did not include Kitchener Brown. He claimed when he produced the death certificate Carmel Dargan responded by saying “Well, what can I say.” 107

[99] Carmel Dargan gave evidence that she did not believe that that document was ever produced in a board meeting because she didn’t recall ever seeing such a document, and if it was produced then it would have been in the minutes. Carmel Dargan said she did not say what Greg Brown claimed. 108 During cross examination Greg Brown said he thought the Board meeting he was referring to was 2015. He rejected the proposition that the exchange did not happen at all.109

Attendance Sheets at various Meetings 2011 – 2014

[100] Cecil Brown Junior gave evidence that on a number of occasions he was “on the door” of Barada Barna meetings checking that attendees were on the Barada Barna membership list held by the ORIC. He said he observed that members of the Kitchener Line were nominating different apicals. Some nominating Lizzie Payne, some were nominating Maggie Barker, some claimed Kitchener Brown and others were claiming May Dargan. He provided extracts of various attendance records for meetings on 28 May 2011, 3 March 2012, 3 October 2014, 4 October 2014, 20 October 2014 and 22 November 2014. 110 Greg Brown gave similar evidence.111

Barada Barna Limited meeting 10 November 2014

[101] Graham Budby said that on or about 10 November 2014 he was invited to attend a meeting of directors of Barada Barna Limited in his role as company secretary. He said at that meeting he recalled a discussion to the effect that all Barada Barna people must provide proof of their blood line connection to an apical ancestor to receive the benefits of the Barada Barna Charitable Trust. He said the action list from the meeting included that Carmel Dargan was asked to prove her apical ancestor connection. Graham Budby attached to his statement a copy of the minutes of the 10 November 2014 meeting. The minutes record a dot point on the matter under a heading of Other Business. 112

[102] Cecil Brown Junior said the requirement to be a bloodline descendant of an apical to be entitled to claim the benefits of the BBCT was confirmed at the meeting of directors of Barada Barna Ltd on 10 November 2014. He attached a redacted copy of the minutes to his first witness statement. 113 He said that although his name was not on the list of attendees, he did attend the meeting and said they were accurate.

[103] Greg Brown said he attended this meeting and also referred to the section of the minutes referred to by Graham Budby above. He said to his knowledge Carmel Dargan never produced proof of her family connection to an apical ancestor. 114

Action Points from Board Meeting on 11 November 2014

Cecil Brown Junior provided with his evidence a redacted copy of a document headed ‘Action Points’ from the Board Meeting Held on 11 November 2014. 115

[104] The Action Points noted that Carmel Dargan was required to provide more evidence of the Kitchener Line’s apical proof, and to produce the research she said she had undertaken with Rosemary O’Grady. Cecil Brown Junior said to his knowledge the research he said Carmel spoke about at the Board meeting has never been produced. 116

Meeting 21 March 2015

[105] Loretta Roos said that she attended a meeting in Townsville on 21 March 2015 with Mr Dillon and members of the BBCT Board. Loretta Roos said that during the meeting Mr Dillon advised the BBCT directors and herself on legal issues including the role of adoption within the Barada Barna people.

[106] Loretta Roos said that Jeff Dillon explained to those present at the meeting that it was critical to present a unified front to the Judge at the Federal Court in order to get the consent determination. Loretta Roos annexed to her statement a copy of the minutes of the meeting. Loretta Roos said she accepted this advice. 117

[107] The minutes of the meeting on 21 March record the following discussion. Where initials are recorded in the minutes I have inserted a name as identified in the minutes;

“ …….

LB (Les Budby) I stated yesterday to the Dargan family that I think it’s necessary to minute this meeting. We have done anthropological research to show connection so from my point of view that’s done and dusted and is no longer an issue. All elders/medical payments etc. will be back to normal this Monday.

It was agreed that the Dargan’s would be referred to in the future as Kitchener Brown’s descendants.

GB (Greg Brown) so would we like to start by going around the table – LR (Loretta Roos) you can start?

LR (Loretta Roos) I’m pretty sure a lot of this got dealt with in Moranbah and Mackay

GLENB (Glen Brown) so going back to descendancy – Kitchener Browns Descendants includes my father downwards?

LB I won’t go back and forth with this issue. The adoption issue is on hold. But anyone who receives benefits and have will continue to.

GLENB produces Delegate’s decision which refers to adoption

JD (Jeff Dillon) I think so. Going on all the interviews that’s the consensus people have come to. There’s plenty of people in Barada Barna who are adopted but they need to be recognised by the Claim Group as being part of the Claim Group.

GLENB well I’m putting this forward to be looked at and I want a decision to be made on it

CD it was brought up on a business sense in relation to other adopted children Even Rosemary O’Grady accepted his …..as Barada. There was no hiding anything and it states in Rosemary’s papers that he’s Barada as stepfather.

JD It is my view is adopted people are in the Barada Barna Claim Group IF recognised collectively. Certainly my advices to the directors would be until that’s decided, people who have been involved should stay involved.

GLENB exactly

JD (but I think it’s an issue that will be raised and addressed with everyone

LB I wasn’t aware of the document but I think we can go away and discuss it

SD (Shirley Dargan) so those three points, would they have accepted Uncle Frank through the documentation?

JD it comes down to the claim group

SD why can’t the three applicants who signed it recognise adoption

JD because really it’s the entire claim group who needs to make that decision

GLENB but 80% of the claim group wouldn’t know who’s who

JD well that’s a matter for directors but it has to be a wider group so that there’s collective recognition

CD then you’d have to define ‘who are adopted children’

LB my own personal view is that if you go back to an apical ancestor and have direct descendancy then you’re recognised. As you go down the line obviously the connection is weaker and would require stronger consideration but we need to go away and discuss this point.

…..”

[108] Les Budby said that the inclusion of the Kitchener Line was discussed at this meeting and he stated that as far as he was concerned the issue was ‘done and dusted’. 118 Loretta Roos also referred to Les Budby saying this in the meeting when he was discussing the inclusion of the Dargan family and descendants of Kitchener Brown.119

[109] Greg Brown accepted that the view Jeff Dillon expressed in the meeting about adoption was not contradicted. 120 Greg Brown said he believed Les Budby was referring to reinstatement of payments to the Kitchener Line. He said these payments were temporarily ceased because of concerns that the Kitchener Line did not have a bloodline connection. He said the payments were reinstated as they came to a view that the issue should be determined in a general meeting.121

[110] Greg Brown agreed during cross examination that the recognition of a person who hasn’t proved their bloodline as Barada Barna is a matter to be determined by the members of the BBAC as a whole. He accepted the proposition that it is possible for someone who hasn’t proved a bloodline connection to be recognised as Barada Barna by a decision of the members of the BBAC as a whole. 122

Barada Barna Ltd Board Meeting 19 June 2015

[111] Cecil Brown Junior gave evidence about a Board meeting on 19 June 2015 and said he recalled that all directors of Barada Barna Ltd including Carmel Dargan were asked to provide proof of their apical ancestor to archaeologists Liz Hatte and Colin McLennan. He said the Board asked Ms Hatte and Mr McLennan to undertake research to help preserve Barada Barna knowledge and produce display boards and booklets and the family history of each apical. He provided an extract of the minutes of the 19 June 2015 meeting. 123

Meeting 20 June 2015

[112] Ms Roos referred to a further meeting of the Barada Barna Ltd Board on 20 June 2015 and provided copies of the minutes of that meeting. 124 The minutes include the following discussion;

“……

“JD (Jeff Dillon) – two outstanding issues

ADOPTION

Adoption is an entire Groups collective decision.

Glen Brown thinks his father Frank Brown, who was adopted into the Group, should be recognised.

JD in as far as Glen’s situation goes, what do the Directors say:

LB (Les Budby) I stated from the word go that we would look at each case – case by case – uncle frank brown has been recognised for a long time so I have no problem with accepting and recognising Frank. But I don’t want to go in a situation where it’s open slather for everyone.

GlenB (Glen Brown) I guess I want a decision on my case. Am I entitled to welfare?

LB the only person we’ve put on hold is yourself and it’s because the directors have needed to consider it

CB (Cecil Brown) we recognise that Uncle Frank was Kitcheners (sic) son. To go down the line now, it really needs to be considered at a big meeting.

GlenB what needs to be decided

CB adoption in general

LR (Loretta Roos) so that piece of paper that recognises adoption, why is that not being adhered to

JD adoption is accepted as part of Barada Barna culture; the view at the last meeting was it needs to be a wider claim group decision or most people. In GB case I personally think it’s a different story; he’s well known and his particular case could probably be decided here.

LB what I’m saying is I’m willing to recognise FB but I’m not willing to yet consider below that. I have no problem with direct descendants off Kitchener brown. That is what my elders have told me. Everyone recognises your father as being part of the Group.

LR so uncle frank was recognised as Barada Barna – are his kids

LB it’s a case by case basis

CB so in Glen’s case, we recognise you as Barada Barna but further adoption we wouldn’t accept that

JD so dealing with Glen’s case, is he Barada Barna by adoption

CB yes

LB yes

SB (Stacey Budby) if your raised as a Barada Barna person you should be recognised

GB (Greg Brown) 2 yes

JD so from your case the view is yes

LB but I want to make clear, I don’t want this to be thought of as everyone who’s adopted is accepted. You are. But anyone else applying needs to be considered on their individual case.

GB to me, your elders (sic) payment, I think we should back date it

LB yes that’s fine

All Directors agree to back date Glens (sic) elders payment

…………..”

[113] Les Budby said that Barada Barna people do adopt people into the tribe and Loretta’s late Uncle Frank Brown is a prime example. Les Budby said at the meeting on 20 June the inclusion of Glen Brown, Frank Brown’s son who was adopted was discussed. He said it was agreed if a person is raised as a Barada Barna person they should be recognised as one. He said it was decided to proceed on the adoption issue on a case by case basis. 125 Les Budby accepted that adoption would involve recognition by the whole group.126

[114] Graham Budby accepted that he answered “yes” to Glen Brown being Barada Barna by adoption. 127 Graham Budby was taken under cross examination to the statement he made on 30 March 2015128 for the Federal Court native title proceedings where he said as follows;

“People become a member of the Barada Barna group through descent, although place of birth is sometimes considered important in collective recognition by the group as having the right ancestry is also important. Barada Barna people must be recognised as Group members by other Barada Barna people. If it’s found or the general view of the group that a person’s descent lines are incorrect they may cease to be recognised as a Barada Barna person.”

[115] Graham Budby agreed with the proposition that being a member of the Barada Barna group is not just a matter of biological descent; it also depends sometimes on the place of birth and collective recognition. He added that it also depended on having the right ancestry. 129

[116] Cecil Brown Junior said in response to the evidence of Loretta Roos that he recalled the meeting on 20 June. He said at that time the Kitchener Line had been recognised as Barada Barna people but, like all members of the group, had to provide proof of their blood relationship to an apical. He said at the meeting Glen Brown, son of Frank Brown and Grandson of Kitchener, attended the meeting and enquired about adoption. He said he had heard rumours that Frank might have been adopted but this was the first time that he had heard from the Kitchener Line that Frank was adopted. He said he only knew Frank as Kitchener Brown’s son. Cecil Brown Junior said the minutes of the meeting reflected the words he said, and that he did not believe this was a decision for the directors as it could open the floodgates for adoption if permitted. 130

[117] Cecil Brown Junior said the minutes reflect that Frank Brown was recognised and that is correct, however recognition was subject to the Kitchener Line providing proof of their apical connection. 131 He accepted that at the time of the meeting he did not say anything about that being contingent or provisional on Glen Brown proving a bloodline connection to an apical ancestor.132

[118] Greg Brown accepted that at the meeting on 20 June 2015 when it was proposed that Glen Brown be accepted as Barada Barna by adoption he agreed. He went on to say the directors could not make that decision because it had to go to a collective group, however he accepted he did not say anything about having to prove bloodline at the meeting. 133

[119] Jarrod Brown said the Barada Barna people do not recognise kinship or adoption but he was aware that other groups recognise adoption. 134

Initial Employment September 2015

[120] Loretta Roos said that on 14 September 2015 Graham Budby emailed her cousin Carmel Dargan asking whether she knew three young people who were looking for cultural heritage work. Ms Roos said this was followed by email correspondence between Graham Budby and Carmel Dargan resulting in Loretta Roos, her son Andrew Roos and Ms Bree Dargan being put forward as possible candidates. Ms Roos annexed to her statement emails between Carmel Dargan and Graham Budby. 135

[121] The initial email from Mr Budby on 14 September 2015 read as follows;

“Hi Carmel

Just wondering if would have 3 young people with drivers (sic) licenses that are looking for CH work at moment?

Can you please get back to me as soon as possible with names and phone numbers. (sic)

Kind regards,

Graham Budby

Manager Woora Consulting”

[122] A subsequent email from Mr Budby to Ms Dargan included the following;

“Hi Carmel

…………….

The work will be walking seismic lines and removing artefacts off the lines. It will be 3 weeks work with the possibly more work after that as I have arrow seismic work starting after this work is finished.

Kind regards...”

[123] Some further emails dealt with an issue concerning the requirement for a provisional drivers licence, and on 16 September 2015 Ms Dargan sent the following email to Mr Budby;

“Hi Graham

The family members who are recommended for the available work.

Loretta Roos (phone number and address redacted)

Andrew Roos (phone number and address redacted)

Bree Dargan (phone number and address redacted)

I have given only the details about the work that you told me via our phone contact.

Thankyou kindly Graham for the opportunity given to our family members.

Will you be contacting them today or tomorrow as I will send them a text to notify them about you call?

Thank you

In Culture & Integrity

Carmel M Dargan”

[124] All three were subsequently appointed.

[125] Bree Dargan said that around mid-2015 Aunty Carmel (Carmel Dargan) told her BBAC was looking to hire people to work as cultural heritage officers. 136 She said after submitting her resume she found out from Carmel Dargan that she got the job.137

[126] Bree Dargan said after finding out that she got the job she spoke with Graham Budby the Manager of Woora Consulting, who told her about the travel arrangements for getting to the camp where she would be based, and about getting appropriate medical clearances. 138

[127] Carmel Dargan said the three Applicants got their roles through Graham Budby emailing her to ask could she put forward three family members to work on funding and cultural heritage. Carmel Dargan said Graham Budby never stated anything about the persons needing to be Barada Barna. 139

[128] Loretta Roos said after a time her employment was transferred from Woora to Windbrake. Ms Roos annexed to her statement a copy of her employment contract with Windbrake. 140 The Windbrake employment contract included the following position description concerning cultural heritage work:

“Position description duties – Cultural Heritage work

Position title: Field Officer

Reports to: the designated cultural heritage coordinator

Key responsibilities position summary: A representative of the Barada Barna People employed to conduct field surveys and inspections during Surface Disturbance activities to assess these areas for items of Aboriginal Cultural Heritage significance. The cultural heritage field officer should be recognised by their peers as a person with knowledge and responsibility to make decisions regarding the proper identification and management of their Aboriginal Cultural Heritage. It will also be the responsibility of the Cultural Heritage Field Officer to:

(a) Work in designated areas under direction from the Cultural Heritage Coordinator;

(b) Identify and record discovery of Cultural Heritage Finds;

(c) Conduct any salvage and relocation of nominated Cultural Heritage Finds; and

(d) Preparation in the morning of Eskys for lunches and including packing of the vehicles in the morning and unpacking of the vehicles upon return at the accommodation site.”

[129] Loretta Roos annexed to her statement an ASIC historical extract for Winnaa Pty Ltd (Winnaa) 141 showing that Winnaa was formerly Windbrake but changed its name to Winnaa on 22 April 2016. Ms Roos provided another ASIC current extract dated 15 March 2017 showing that Barada Barna Ltd is a 100% shareholder of Winnaa.142 Ms Roos said that the transfers from Woora to Windbrake to Winnaa were automatic and this was because the companies were owned and controlled by Barada Barna Ltd.143

[130] Graham Budby said in or around August 2015 Woora required CHOs. He said to provide the opportunity for all Barada Barna family lines to be involved in working on Country, he shared the opportunity to undertake cultural heritage work between the different family groups. 144

[131] Graham Budby gave evidence that at the time of sending the emails referred to above he was aware that Kitchener Brown had been recognised as a Barada Barna person although his descendants had been asked to provide proof of their eligibility in the form of evidence that they had a blood relationship to an apical ancestor. 145

[132] Graham Budby said the Kitchener Line had not previously been asked to undertake cultural heritage work and it was a gesture of goodwill that he extended the offer of employment to the Kitchener Line via their family spokesperson Carmel (Dargan). He said he did not have any discussions with the Applicants about their connection to a Barada Barna apical ancestor. 146

[133] Graham Budby said he did not specifically recall saying to Carmel (Dargan) or the Applicants that it was a requirement to be Barada Barna to do cultural heritage work although, around the time the Applicants were recruited, he recalled saying to the Applicants and/or Carmel (Dargan) something along the lines of “You’ll be doing work on Barada Barna Country.” He said this statement was intended to reinforce the requirement that you must be Barada Barna to do cultural heritage work because it is a given that you must be Barada Barna to walk on Country and work on their Country. He said it is an unspoken rule for Aboriginal people that you do not walk on another man’s country without permission, and this comes back to their connection to Country. 147

Inherent requirements of Cultural Heritage Field Officer Role

[134] Loretta Roos said she was in the position of Cultural Heritage Field Officer (CHO) from around September or October 2015 until August 2016 and that time was spent learning about Barada Barna Heritage. Loretta Roos said this was so she could identify cultural heritage and artefacts. Loretta Roos said that through the knowledge she developed whilst she was in the position and due to her status as one of the elders in the group, Les Budby trained her up as a team leader. She said she learned about all elements of the job including learning about all the artefacts, tools, identifying fire places and scar trees to preserve. 148

[135] Loretta Roos said that when she commenced working for Woora nothing was said to her about any ‘inherent requirements’ of the position, and this was the same for her employment with the other companies. 149

[136] Andrew Roos said that as a CHO he would go through mining leases and survey the land for significant Indigenous artefacts to be salvaged. He said when his mother and he started they were trained while on the job with the other workers. He said after about two months or even less, his mother and he were told that they had picked everything up and they worked independently. 150

[137] Andrew Roos said on a typical day they would have a group meeting where they would be notified of the area they were to investigate. He said they would then split into one or two groups and then they would walk the area, looking for artefacts like axe heads and scrapers made from rocks. He said besides that they would look at the trees as well to see if there were any scarred trees. He said they would look at the land to look for old campsites and campfires, pretty much anything that was significant and showed that people used the area. Andrew Roos said if they found enough artefacts and signs of occupation, it would be up to the team leaders to talk to the miners and negotiate with them about what to do. 151

[138] Andrew Roos also said when he was hired no one said anything to him about there being any ‘inherent requirements’ associated with the position. He said no one told him that he had to be a Barada Barna person to get the job. 152

[139] Bree Dargan said at the time of starting work she received a letter and a copy of the Woora Consulting General Policies and Procedures from Woora Consulting dated 21 September 2015. 153 She said she did some inductions in Mackay and at some of the mines where they would be working, and then in the following week she started working on site performing the duties of a CHO. Bree Dargan said she learned about Country and traditional ways from the archaeologists they worked with, and from the more experienced CHO’s.

[140] Les Budby said it was not correct that only Barada Barna can work on Barada Barna Country. He gave examples of non-Barada Barna people working on Country and being at sacred sites and taking photographs. 154 He accepted that he did not know if a Jangar elder Colin McLennan had been invited onto Country.155 He said different tribes all worked on each other’s Country and camped together. He said the languages and cultures are similar across the whole BBKY area.156 He accepted the practice in recent years has been Barada Barna people first and that it about preserving cultural heritage.157

[141] Les Budby said Greg Brown and Cecil Brown Junior have never done cultural heritage work on Country. He said the claims they make in their statements about cultural heritage restrictions are exaggerated. 158

[142] Carmel Dargan was taken to the statement she provided for the Federal Court where she said the following at paragraph 30 under a heading of Trespass and Permission;

“..They should contact Barada Barna people and elders and make sure it’s okay to come on country and let us know what they are there for to show respect and protocol. That’s what we had to do and that’s what Mum and Dad have taught us...”

[143] Carmel Dargan gave evidence that she agreed with the proposition that the appropriate protocol for persons who are not Barada Barna coming onto Barada Barna country is to seek permission of the traditional custodian. 159 Carmel Dargan said she did not have any knowledge of CHO’s working on Barada Barna Country when they were not Barada Barna, but said she had only been told there were non-Barada Barna people before but she did not know them.160 It was put to Carmel Dargan that it would be the normal or preferred position that CHO’s working on Barada Barna country be Barada Barna people and she agreed saying they would put Barada Barna first.

[144] Carmel Dargan went on to say at a meeting in Innisfail Les (Budby) said they would look at partners down the track but Barada Barna people first.

[145] Gavin Brown said that as far as he was aware there were no specific inherent requirements for the jobs. He said the only qualification was your bloodline and the BBAC Board’s approval. He said a person applies to the BBAC Board and if the BBAC Board recognises their bloodline then they are eligible. 161

[146] Graham Budby gave evidence that he has been involved in cultural heritage work for over 21 years on Barada Barna Country or Country shared by the Barada Barna people and Darumbal people. He said he worked under the supervision of his father and Barada Barna elder Frank Budby. He said for the last ten years he has been a project manager for cultural heritage work on Country.

[147] Graham Budby said he only performs work on Country, and said he would never go onto another man’s country to do cultural heritage work unless he was invited. He said even then he would have his doubts about whether he would do cultural heritage work on another man’s country because of his upbringing and tradition that Barada Barna people only do cultural heritage work on their own Country. 162

[148] Graham Budby said that the BBAC Board considers individuals who have expressed interest in cultural heritage work and authorises the employment of individuals as CHOs. He said this is a requirement understood by all Aboriginal persons because you do not walk or work on another man’s country. He said to be eligible for employment as a CHO; a person must be a Barada Barna person and a member of the BBAC. 163 He accepted there is no document which says this and this was an expression of his opinion.164 He clarified that this opinion was based on what he had learned from his father.165

[149] Graham Budby said it was important that CHOs are Barada Barna persons because in their role, they are required to visit sacred sites, identify artefacts and speak with Barada Barna elders about particular sites and artefacts. He said persons who are not Barada Barna could not perform the full range of cultural heritage duties because Barada Barna people regard certain information about sacred sites and other matters as sensitive and this information is not to be shared with non-Barada Barna persons. 166

[150] It was put to Graham Budby that as a practical matter there was nothing that he stated that couldn’t be done by a non-Barada Barna person as it had been done before 2005. He responded that was only because they had been invited on. 167 He went on to say a person invited on could do some things but not all things. He said they could not be taken to sacred sites. He said that is what happened prior to 2005.168

[151] It was put to Graham Budby that a CHO’s role as at 11 August 2016 involved identifying stone artefacts, axe heads, grindstones and scar trees and artefacts that would be photographed and tagged using GPS and he agreed. He agreed that the Barada Barna people would need to tell mining companies which were important. 169

[152] It was put to Graham Budby and he accepted that a cultural heritage worker could approach someone higher in the hierarchy such as a team leader for assistance in understanding what an important artefact was. 170 He agreed Les Budby would be such a person, however he said for cultural heritage purposes Barada Barna persons have to do the work. He agreed hypothetically a person could be instructed to do the work if they knew what they were looking for.171 Graham Budby agreed that it was not really a matter of culture but of experience and CHOs spot things.172

[153] Graham Budby agreed that some sites were sacred to Barada Barna women and some to Barada Barna men and the same applied to ceremonies. He agreed this involved handing down culture from elders to younger generations. It was put to Graham Budby that was not something that CHOs would be doing. He responded to the effect that experienced cultural heritage workers such as team leaders will tell other CHOs things like that. He agreed a male CHO would not tell a female CHO why a particular site is a male sacred site and would only say to not enter that area. 173

[154] Graham Budby agreed his statement did not say that he told the Applicants (concerning their employment) that they needed to be Barada Barna. He responded that to do cultural heritage work on Barada Barna Country and be employed by their Barada Barna company they would have to be a Barada Barna. He said to do work on traditional owner Country you must be a traditional owner. It was put to Graham Budby that prior to 2005 non Barada Barna people were doing the work and he responded that they were invited on. 174

[155] I granted an application for Graham Budby to be recalled to give evidence regarding a number of documents variously described as exploration agreements that had been filed as attachments to the statement of Greg Brown. He gave evidence that he worked as the project manager for the BBAC and described a process where proponents (for exploration agreements) contact the legal representative who then went through the proposed agreement. He said he has been doing this work since 2008 or 2009 and more recently with Winnaa. 175

[156] Graham Budby described Winnaa as the service provider for cultural heritage of the BBAC. 176 Graham Budby was asked if any of the exploration agreements were in operation as at August 2016 and he said probably Arrow Energy. He was taken to one of the exploration agreements dated 18 August 2017177, and asked if the definition of a ‘survey party’ was typical of what might be found in an exploration agreement and he agreed with that.178

[157] Graham Budby was unsure if some of the exploration agreements had expired at the time the Applicants were employed. He accepted the August 2017 exploration agreement was entered into after the termination of the Applicants. 179

[158] Cecil Brown Junior said that CHOs are selected from Barada Barna family groups. He said they only employ Barada Barna people connected by blood to do cultural heritage work because they only employ people of their own culture to work on their Country. He said this was because of an important protocol of Aboriginal people that was taught to him by his elders that they do not go onto another man’s country and walk on their land. He said the Barada Barna people believe they must be invited to go onto another man’s country and he would not go uninvited to go onto another man’s country to perform work on their country. 180

[159] Cecil Brown Junior said knowledge about sacred sites and artefacts on their country is handed down from their elders, and certain information is kept solely for Barada Barna people. He said people who are not Barada Barna do not know where certain sacred places are. He said as an elder he would not share knowledge of certain sacred sites with people who were not Barada Barna. 181 He said for these reasons it is Barada Barna lore that only Barada Barna people should be employed as CHOs for work on Barada Barna Country.182

[160] Greg Brown said Winnaa engaged CHOs to perform cultural heritage work and the work is essential to preserve their culture including sacred sites and artefacts. He said the work can only be performed by Barada Barna people, and “Our Country is our Country.” Greg Brown said the requirement is consistent with and supports the principle objectives of the BBAC as set out in clause 3.2(d) to (g) of the BBAC Rule Book. 183

[161] Greg Brown said that he knew this because his father and elders have told and shown him, the sacred sites, ancient artefacts and cave paintings on their Country. He said to preserve these sites and for reasons of privacy, knowledge of these sites including their location is restricted to Barada Barna people. 184 He said mining companies have asked the BBAC to undertake cultural heritage work in Blackwater and the Hunter Valley which are outside their Country and the BBAC has declined those requests because they respect other people’s country and it is not appropriate for them to perform work on another man’s land.185

[162] Greg Brown said for these reasons Winnaa and the BBAC only want to engage Barada Barna persons. He said to the best of his knowledge they have not engaged any persons as CHOs unless they have been recognised as Barada Barna. He said in the case of the Applicants they were recognised as Barada Barna but were still required to prove their bloodline connection to an apical ancestor and were given some time to prove this. 186

[163] Greg Brown was asked about what personal involvement he had in the process of recruitment and his evidence was to the effect that the directors have a meeting and are asked if they have any people that would like to put their hand up for a CHO position. He said they make sure that they are Barada Barna people and have proof of apical and bloodline. When asked if he personally reviewed the information he said one of the directors is related to the person. 187

[164] Luarna Mitchell said she worked as a cultural heritage officer from around 23 August 2016 to around July 2017 when she resigned. She said she had been the acting project manager for cultural heritage work for two weeks when Graham Budby was on holidays.

[165] Luarna Mitchell said that the purpose of cultural heritage work is to protect artefacts and scarred trees and preserve their culture before they are destroyed by mining. She said the number one requirement for a person to satisfy if they are to undertake cultural heritage work is that they are a bloodline Barada Barna person. This is because only Barada Barna people can walk on Country, and certain sites are not for outsiders to know about.

[166] Luarna Mitchell said she did not recall ever being specifically told that she had to be Barada Barna to do cultural heritage work but because Aboriginal people know that you do not walk on another man’s country, it is a rule that she knew was widely accepted that you must be Barada Barna to walk on their Country. 188

[167] Jarrod Brown said Barada Barna people perform cultural heritage work and only Barada Barna people are permitted to walk on Country. He said it is culturally insensitive for others to walk on their country. He said from time to time Barada Barna elders may give permission to an archaeologist or other specific persons to walk on Country to help with cultural heritage work. He said however it is their group’s protocol that they only employee Barada Barna people to do cultural heritage work to teach their own people their culture and give positive opportunities for employment of their young people. 189

Barada Barna Ltd Board meeting 17 October 2015

[168] Cecil Brown Junior said that he attended a meeting on or about 17 October 2015 in Townville along with Carmel Dargan where connection to apicals was discussed. Cecil Brown Junior said that he recalled a discussion to the following effect:

“Board member: Carmel, are you able to provide proof of your connection?

Carmel: I have known from my research in 1978 that we came from Lizzie Payne’s side as her apical.”

[169] Cecil Brown Junior gave evidence that as soon as he heard this he abruptly raised his head which had been lowered as he was taking notes and immediately wrote down Carmel Dargan’s words in the front cover of his notebook along with the date so he could remember what he heard Carmel say. He said he reread his notes and was satisfied that he had correctly noted down Carmel Dargan’s words. He said he quickly noted Carmel’s words because he was already sceptical about whether the Kitchener Line could prove their Barada Barna connection and he was surprised to hear Carmel Dargan now claimed she was related to his apical, Lizzie Payne. He provided a copy of the notes with his evidence. 190

[170] Cecil Brown Junior said he then heard someone, but he could not recall which Board member, say words to the effect to Carmel Dargan:

“Why did you claim you were descended from Maggie Barker? Why have you not produced the research?” 191

[171] Greg Brown said he remembered at a Board meeting (but did not specify which meeting) Carmel Dargan being asked who her ancestor was and to prove her connection and she replied with words to the effect:

“I was mistaken before when we said ‘Maggie Barker’. Our ancestor is Lizzie Payne.” 192

Dismissal of Dinduck family November 2015

[172] Cecil Brown Junior said that prior to the dismissal of the Applicants, the Dinduck family (unrelated to Kitchener Brown) who claimed to be Barada Barna were suspended from Barada Barna membership because that family was unable to prove their bloodline connection to an apical ancestor, despite requests to provide proof.. He said Dinduck family members employed to do cultural heritage work were dismissed from their roles because only Barada Barna people can perform cultural heritage work on Barada Barna Country.

[173] He said prior to suspension of the family he along with Greg Brown and Les Budby met with the Dinducks on or about 16 November 2015. He said as the Dinducks were unable to produce proof of their apical connection the suspension occurred after the meeting. He provided a redacted copy of minutes of a meeting on 15 November 2015 which record the intention for the meeting about the matter. 193

[174] Cecil Brown Junior said Carmel Dargan was present during meetings where the Dinduck family’s lack of proof of their apical connection resulted in their removal, and would have been aware of the consequences that could flow from the Kitchener Line’s inability to prove their apical connection. 194 It was put to Cecil Brown Junior that the minutes do not record that the Dinduck family were suspended. He accepted this but said he was pretty sure it was minuted.195

Barada Barna Directors meeting 10 January 2016

[175] Greg Brown said that on 10 January 2016 he attended a Barada Barna Directors meeting, and during the meeting it was agreed that all Directors would provide Liz Hatte, Archaeologist, with details of their families including the connection to their apical ancestor. Greg Brown provided a copy of the minutes and said the reference to 10 January 2015 was a typographical error. 196

Barada Barna Ltd Board meeting 16 February 2016

[176] Cecil Brown Junior gave evidence concerning a further Board meeting on 16 February 2016 where again directors were asked to provide proof to Liz Hatte (Archaeologist) of their apical connection He provided a redacted copy of the minutes 197 which included a note as follows:

[177] Greg Brown said he and Carmel Dargan also attended this meeting and that it was again agreed that all directors would provide Liz Hatte, with details of their family including connection to an apical ancestor. He said sometime after the meeting Liz Hatte said to him that Carmel Dargan had not provided any information to her. 198

[178] Carmel Dargan rejected the allegation that the Kitchener Brown line didn’t provide any information to Liz Hatte. Carmel Dargan said Liz Hatte came to her home and Les Budby was present, and she had attended her home on at least three occasions. 199

Discussion at Barada Barna Roadshow 25 February 2016

[179] Greg Brown said he recalled in or around 25 February 2016 having a discussion with Loretta Roos in the presence of Carmel Dargan whilst at a Barada Barna roadshow meeting in Innisfail. He said the discussion was about requiring her family to prove their connection to an apical ancestor. He said at this stage he was suspicious that the Kitchener Line was not Barada Barna. 200 He said at the time he was aware that Carmel Dargan’s mother (who was Kitchener Brown’s daughter) was alive, and he believed that she would know where Kitchener Brown came from and who her descendants were related to.201

Inclusion of Kitchener Line in native title claim

[180] Les Budby said that they had to satisfy the State (of Queensland) that Kitchener and Maggie were Barada Barna. He said they spent a lot of money at the time connecting Kitchener to the claim group because the elders believed Kitchener was a Barada Barna man, despite the lack of documentation. He said Jeff Dillon, Peter Gore and the directors of the day fought tooth and nail to have the Kitchener line included in the claim group. He said the problem was no history of Kitchener before 1908. He said there was a lot of to-ing and fro-ing with the State on the issue, however Jeff Dillon and Peter Gore eventually convinced the State that Kitchener was connected to Country through anthropological reports and elders’ stories. 202

May and June 2016 Investigation of Kitchener having Normanton Connection

[181] Cecil Brown Junior said that in or around May 2016, Les Budby said to Greg Brown and himself words to the effect of:

“I’ve had a discussion with Bully who says his father was from the Normanton Area. We should investigate if Kitchener Brown was from the North Queensland. I’ve arranged for us to go to Cairns to meet with my cousin who knew the Dargans real well.”

[182] Cecil Brown Junior said that he travelled with Les Budby and Greg Brown to Cairns sometime around 16 - 18 June 2016 where Les Budby took them to Delray Budby’s house and he said they had a discussion to the following effect:

“Les: This is elder Delray, she is my cousin. She knows the Dargan family really well. We are looking into Kitchener Brown’s family. Do you know where he came from?

Delray: I believe he was from Hope Vale and Normanton. His mob are not from down your area and they are claim jumping if they are claiming that they are from your area. Contact cousin Jacko Budby from Weipa, he is more knowledgeable than me.”

[183] Cecil Brown Junior said that Les Budby, Greg Brown and himself travelled to Weipa to meet Jacko Budby. He said when they arrived they were not able to meet him as he was attending to sorry business. Cecil Brown Junior said that Greg Brown and Les Budby went back to Weipa and told him that they had spoken to Jacko who said something along the lines of “if we wanted to go on with this we should contact the old people of Hope Vale, that’s where Kitchener’s family had connections to or were removed to”. Cecil Brown Junior said that the information from Delray and Jacko added to his thoughts that it was the case that the Kitchener Line was not connected to a Barada Barna apical. 203

[184] Greg Brown said in or around May/June 2016 he recalled a discussion he had with Les Budby where Les said to him that they needed to investigate whether the Kitchener mob were Barada Barna and that he had arranged for Greg Brown, Cecil Brown Junior and himself to speak with his cousin Delray Budby in Cairns. Greg Brown claimed Les Budby said Delray Budby is under the Maggie Barker line and knows about Kitchener’s family. Greg Brown said they should also speak to his cousin Jacko Budby in Weipa who is also under the Maggie Barker line.

[185] Greg Brown also said that Cecil Brown Junior, Les Budby and himself travelled to Cairns and meet with Delray Budby who expressed the view that Kitchener Brown was from the Gulf Country. He said they also met Jacko Budby in Weipa who said his partner is from the Gulf Country, and she said Kitchener Brown’s mob was from the Gulf Country, Waanyi Country. 204

[186] Les Budby said with the last five years some members of the younger generation and members of the Board, including Cecil Brown Junior, Greg Brown and himself wanted to find out if there was further information on the Kitchener connection and this was the reason for the trip to Cairns to meet Greg and his cousin Delray Budby. Les Budby said that after speaking with Delray he came to the conclusion that there were two Kitchener Browns. He said he found out later that the two Kitcheners passed away at different times.  205

[187] It was put to Les Budby that the discovery of a second Kitchener Brown, if there is one, does not strengthen Kitchener Brown’s connection. He responded that Kitchener Brown was removed from Nebo Creek. He did not deny that for generations there had been speculation. He said Delray talked about a Kitchener Brown from Normanton that she did not know herself, but heard about from her brother who spoke about a Kitchener Brown that moved to Kowanyama, but this was a completely different Kitchener Brown. 206

[188] Carmel Dargan said Les Budby said at a Board meeting he, Greg Brown and Cecil Brown Junior went to speak with Delray Budby who said she knows the Dargan family. Carmel Dargan said her family did not know Delray Budby. 207 Carmel Dargan referred to a report by an anthropologist Charmaine Jones that stated that the other Kitchener Brown came from around the Normanton area.208 Carmel Dargan denied209 the evidence of Mr Jarrod Brown where he said in his statement that he heard Carmel Dargan say “my family is from the Gulf Country”.210

[189] Cecil Brown Junior was asked if he was aware of evidence that there might be another Kitchener Brown from the Gulf Country. He said only after reading Hilda Maclean’s report, and that he was not aware of it at the time the Applicants were dismissed. 211

[190] Greg Brown said he was not aware of any evidence that there was another Kitchener Brown from the Gulf country. 212

[191] Les Budby said that after the trip to see Delray they went to Townsville and discussed their findings with Jeff Dillon. He said they then discussed instructing an anthropologist to go up north and do further research on the Kitchener Line. He said the consensus was that this research would take place after the consent determination. Les Budby said before the course of action could be taken the Board voted in haste to cancel the membership of the Kitchener Line. 213

Loretta Roos Application for membership of BBAC 18 June 2016

[192] On 18 June 2016 Loretta Roos completed an application for membership of the BBAC. Greg Brown, Cecil Brown Junior and Graham Budby all indicated approval of the application by email on 19 and 20 June 2016. 214

Federal Court Consent Determination 29 June 2016 and Welcome Ceremony

[193] On 29 June 2016 a Federal Court Judgement of Dowsett J delivered a consent determination granting native title to the Barada Barna people at Moranbah. Carmel Dargan said Greg Brown and Cecil Brown Junior asked her to do the welcome to Country. Carmel Dargan said it would have been very inappropriate for a non-Barada Barna person to conduct such a welcome to Country. 215

[194] It was put to Cecil Brown Junior that on 29 June 2016 there were no doubts or misgivings about Carmel Dargan being Barada Barna. He responded to the effect that he had concerns that there was no proven connection at the time. He was asked if he had those concerns why did he let Carmel Dargan go ahead (and perform the welcome to Country). He answered because it was believed at the time that she may have been Barada Barna. 216 Later it was put to him that on 29 June 2016 he had a belief that Kitchener Brown was Barada Barna and he answered “We had a belief pending proof of documentation”.217

[195] It was put to Cecil Brown Junior that ten of the statements put into the Federal Court proceedings attested to the fact that Kitchener Brown was Barada Barna. He responded that it was believed he was Barada Barna. He went on to say they also asked for proof but never got it. 218

[196] Cecil Brown Junior was taken to his own statement in the Federal Court and parts of his statement discussing Kitchener Brown’s return to country. He said his father (Cecil Noel Brown) believed Kitchener was a Barada Barna person, but he also held reservations. 219 He was asked how you can have belief if you have reservations and that you either believe or you don’t. He accepted that.220

[197] It was put to Cecil Brown Junior that if the case to the Federal Court wasn’t being put forward on the basis that Kitchener Brown was the son of Lizzie Payne, that would have caused problems in the proceedings. He answered that it may have delayed the Consent Determination. It was put to him that it may have resulted in there being no Consent Determination. He disagreed with that proposition. 221 Cecil Brown Junior was asked if this was a set up. He said it wasn’t.222

[198] Greg Brown was taken to the statement he prepared for the Federal Court 223 and accepted that it did not include any doubt about whether Kitchener Brown was Barada Barna.224

Annual General Meeting 23 July 2016

[199] Loretta Roos said that on about 23 July 2016 there was an Annual General Meeting (AGM) where BBAC members had to decide which people became directors on the Board. Loretta Roos said as she knew Jarrod Brown and Gavin Brown had criminal convictions and she asked them to inform the meeting what those convictions were. Loretta Roos said she thought this was important that people ought to know before casting their votes. Loretta Roos said that Jarrod Brown clearly did not like being challenged on this issue and Loretta Roos said she formed the impression that Greg Brown did not like the issues being raised. 225

[200] Gavin Brown gave evidence in support of the Applicants. He said Greg Brown, a director of BACC is his brother, and Uncle Norman Albert Brown who passed away in 2016 was their father. 226 Gavin Brown said he became a director on the BBAC Board shortly after consent determination in June 2016. He said he was appointed on 23 July 2016 along with Greg Brown’s son Jarrod Brown. Gavin Brown said when he first became involved in the BBAC Board he did not really know much about how it worked, and was still learning the ropes in August 2016.227

Alleged phone call between Gavin Brown and Greg Brown

[201] Gavin Brown said shortly after he started as a director he received a phone call from Greg Brown informing him there would be a vote on the continued inclusion of the Kitchener Brown line at the Board meeting on 11 August 2016. Gavin Brown said Greg Brown said words to the effect of:

“There’s going to be a vote on the Dargan’s membership. Their connection has been an ongoing issue for a couple of years but the Dargan’s had not brought forward any evidence to support their connection to Country. You need to help me put this motion through. The Elders know what’s about to go down and they support it. Uncle Lewis is aware of it and he’s in agreement.” 228

[202] Gavin Brown said Greg Brown did not mention anything about a vote on whether Loretta Roos, Andrew Roos and Bree Dargan should keep their cultural heritage jobs. 229 Greg Brown said he could not recall having a conversation with Gavin Brown or any other director about removing the Kitchener Line at the Board Meeting.230 Given Gavin Brown’s evidence was uncontested and Greg Brown’s evidence was that he could not recall the discussion, I am inclined to accept Gavin Brown’s evidence about the phone call.

Discussion with Elders

[203] Greg Brown said that prior to the Board meeting he did discuss removing the Kitchener Line from Barada Barna membership with his elders. He said Uncle Lewis, Aunty Rachel, Aunty Bethyl and Aunty Collette said words to the effect of “Yep, go ahead with it”. 231

BBAC Board Meeting 11 August 2016

Carmel Dargan

[204] Carmel Dargan said the BBAC had eight directors and all eight directors were in attendance at a meeting of the BBAC on 11 August 2016. 232

[205] Carmel Dargan’s evidence was to the effect that Greg Brown, Cecil Brown Junior, Les Budby, Graham Budby, Jarrod Brown, Gavin Brown, Luarna Mitchell and herself came into the room and sat down, and Greg Brown attacked her about what happened at the AGM. 233 She claimed that Greg Brown said to her as the family representative she should have stopped her sisters Frances and Shirley Dargan and Loretta Roos asking Jarrod Brown and Gavin Brown about their criminal history.234

[206] Carmel Dargan gave the following evidence concerning the meeting on 11 August;

“PN 405

So coming forward then to 11 August, what is it that Greg said about that to you? ---Well, he was angry and said that it shouldn’t have happened and that I should – as the family representative I should have got up and stopped them. I said no, excuse me Greg, you were nominated chairperson on the day to take all questions and that from the board. If you wanted all the directors to stand up there and talk you should have asked us to. But I said people are allowed to ask questions.

PN 406

What then followed after he said those things to you?---sorry?

PN 407

At 11 August meeting, he said those things to you. What was the next thing that happened?---Well, he went about that because he said that, you know, my sisters and Loretta saying that in front of the elder that was present on the day Julie Budby, so he wasn’t happy about that. Then he went around the table and asked, he said, “I’m going to go around the table and ask each person who they’re (indistinct) is”. So they went from the other end of the room and back to me, I was last, all I said was Lizzy Payne and then Greg said to me well no, we don’t accept that, we’re going to move a motion to step your family down today. He said you need to bring more evidence.

……………..

PN 409

Did that happen, did they move – sorry? --- Yes, they did move a motion

……………..

PN 411

Who voted? Who were the ones who voted?---I believe there were six and then Luarna wanted to abstain but then Greg said to her no, everybody should vote. So Luarna said no because she didn’t have much knowledge, she just come more as a director, so that’s Greg with Luarna. And I just can’t recall whether they took my vote or not. But it was two against six, or one against six.

PN 412

Were you there for the whole meeting?---For the morning session right up until lunch time. Can I just say when that happened Les Budby said – before they did the vote Les Budby said to Greg, “Is this legal? Can you do this?”, and Greg said “Yes, we did get legal advice”, and they can do it. They can step our family down today.

PN 413

Now I asked you if you were there for the whole meeting and you were going to say---?---Sorry, not the – sorry, no, not the whole of the meeting. I left lunch time. We adjourned for lunch, that’s when I left.”

[207] On the matter of whether Carmel Dargan’s vote was counted or not Carmel Dargan gave the following evidence;

“PN 420

Your vote according to these minutes appears not to have been recorded. There’s only Luarna that’s mentioned as being against. The others except for you are all voting in favour. What do you say about that?---All I can say is I believe that might be correct but I’m not 100 per cent sure.

PN 421

Well, why wouldn’t your vote be counted? Why wouldn’t your vote be recorded?---Because as I recall sometimes you didn’t get a vote or something if it was to do with your family or something, yes. You were left out of that vote so that’s why I think – I believe that I was left out of that but then again like I said I am not 100 per cent sure.”

Gavin Brown

[208] Gavin Brown said when he attended the meeting Greg Brown tabled the motion to cancel the Kitchener family line, and the vote went in favour of cancelling their membership. Gavin Brown said he relied on the conversation he had with Greg Brown about two weeks previously referred to in his statement. He said he did not read any of the materials filed in the Federal Court in respect of the consent determinations before casting his vote. He said there was no discussion about the BBAC rules or putting the matter to a member vote. 235

[209] In his reply evidence Gavin Brown said that Greg Brown approached him in the days leading up to the Board meeting and asked him to move the motion regarding the expulsion of the Kitchener family line. He said Greg Brown told him that Jarrod would second it. He said Greg Brown asked him to move the motion because as Chairperson he was not allowed to move motions, only vote on them and that is why Gavin Brown said he moved the motion. He said he only voted to cancel the memberships because Greg Brown explained to him that there was enough proof to show Kitchener had no bloodline lineage and an anthropologist had done research to say they were not Barada Barna (emphasis added). He said he did not make comments that he knew Kitchener was not Barada Barn or that the Dargans were not connected. He said that was because his father told him that the Dargans were connected and he always knew Kitchener was a Barada Barna man. 236

[210] Gavin Brown said that after the vote on Kitchener, Greg Brown stated it was only fair that the Kitchener line employees be dismissed and he asked the BBAC Board to vote on the issue and the Board voted to dismiss. Gavin Brown said Winnaa did not make the decision to dismiss them. He said there was no discussion about their contracts or whether the BBAC could lawfully terminate their employment, and no discussion about the inherent requirements of their positions. Gavin Brown said at the time it appeared to him their terminations appeared to be an afterthought to the main issue. 237

[211] Gavin Brown said he regretted voting in favour of cancellation on 11 August 2016. He said Kitchener was always considered a Barada Barna man. He said when his father (Norman Albert Brown) started the native title claims the Dargans (and the rest of the Kitchener line) were recognised by their bloodline as Barada Barna. 238

[212] Gavin Brown said his grandfather Grandad Norman Brown (formerly Barker and renamed Brown) played at Nebo Creek with Kitchener and was removed with him and taken to Cherbourg in 1908. Gavin Brown said that Grandad Norman Brown told his father that Kitchener was his brother and that was the end of the issue. 239

[213] Gavin Brown said his father would never have brought Kitchener back to intern him on Country if Kitchener were not a Barada Barna man. He said to bury a Barada Barna man on Country would bring bad spirits and bad luck. 240

Les Budby

[214] Les Budby said he attended the Board meeting on 11 August 2016 and the meeting agenda did not list cancellation of the Kitchener family line.. He said when it came to “any other business” the Kitchener issue was raised by Greg Brown. He said this was first he had heard of it and he had no prior warning that this issue was to be discussed. He said Carmel Dargan also appeared to have no forewarning. Les Budby said other directors must have been aware. His evidence was to the effect that he did not recall the motion being a suspension rather than a cancellation, but rejected the proposition that he misunderstood what was happening. 241

[215] He said when he voted he did not hold a genuine belief that Kitchener was not a Barada Barna person. 242 Les Budby said he did not think about Kitchener’s connection when he voted, and he voted in favour for a combination of reasons including:

(a) At the time he was suffering from stress and depression;

(b) He was going through a marriage breakup;

(c) He felt compelled to vote that way because he had previously removed the Dinduck family;

(d) He was not strong enough to stand up to the Board and follow what his elders had said previously;

(e) He also had some personal issues with the Board at the time;

(f) His wife, children and cousin had been sacked from their jobs at Winnaa;

(g) It seemed that the Budby’s were being wiped out of the cultural heritage work; and

(h) He was the only Budby left on the cultural heritage team and he feared for his job.

[216] Les Budby said he had already set a precedent by removing the Dinduck family for not being able to provide enough documentary proof of connection. He said this played heavy on his mind when he voted. 243 Les Budby said Greg Brown instructed him to dismiss the Applicants which he did by telephone.

Graham Budby

[217] Graham Budby said during the meeting, whilst only the members of the Board were present, Greg Brown said words to the effect of “Directors, please name your apicals.” 244 Graham Budby said he heard Carmel Dargan say words to the effect of: “Lizzie Payne – son Kitchener Brown – daughter May Sheila Brown, my mother.” Graham Budby said Greg Brown said words to the effect that Carmel Dargan had not given any proof of her connection. Graham Budby said Gavin Brown then moved the motion that the Kitchener line be suspended, and when proof was supplied and accepted, benefits would recommence. 245

[218] Graham Budby said he voted in favour of suspending Kitchener Brown’s family line and his reasons for doing so were set out in paragraph 36 of his witness statement including lack of proof, Kitchener Brown being a community brother, review of the expert reports and he had heard Kitchener Brown had left Barambah and gone to the Gulf Country. 246

[219] In reference to paragraph 36(c) of his witness statement, Graham Budby was referred to a sentence at page 20 of the Review of Genealogical Data conducted by Hilda Maclean 247 which reads as follows:

Therefore, combining the above documentation, the children of Lizzie Payne/Hatfield are most likely to be the following:

[220] Graham Budby’s response was that the report used the term “most likely”. He also said the table says “Undocumented but presumed.” Graham Budby went on to say that he didn’t read that part, (which I took to mean that part of Hilda Maclean’s report) and he also said that he only concentrated on his own family history. He accepted that given his own family history was not an issue and that the issue was about whether or not Kitchener Brown was the son of Lizzie Payne, that his own family history was not really relevant. 248 He agreed that paragraph 36(c) was not the only reason (he had doubts about the Kitchener line).249

[221] Graham Budby said following the motion to suspend the Kitchener Line, the Board then considered the Applicants’ employment. He said because the Applicants are descendants of Kitchener Brown and their connection to a Barada Barna apical ancestor had not been proven, the Board agreed that the Applicants should not be performing cultural heritage work. Graham Budby said Greg Brown told Les Budby to call the Applicants and tell them they are no longer needed for cultural heritage work until they prove their connection, a blood relationship to an apical ancestor. Graham Budby said he agreed with Greg Brown’s direction. Graham Budby said he had reviewed the minutes and confirmed they were accurate. 250

[222] Graham Budby’s evidence was to the effect that at the time he made his statement for the Federal Court proceedings the reference to “other Barada Barna people” was a reference to the wider group of Barada Barna people as a whole, however since consent determination it is recognition by members of the BBAC. 251 He added it also involves having a connection to an apical ancestor. He said you have to have a blood connection to an apical ancestor listed on the consent determination.252

[223] Graham Budby said the Kitchener Line was recognised in the group by the claimants (for native title) at the time but they were asked for more evidence. He said they kept asking for more evidence and no evidence has been provided. 253 Graham Budby was asked about his words “if it’s found, or the general view of the group is that a person’s descent line is incorrect, they may cease to be recognised as a Barada Barna person.” Graham Budby agreed with the proposition that it hasn’t been proven whether or not the Kitchener line had a bloodline connection. He accepted that it hasn’t been found that they don’t have a bloodline connection.254

[224] Graham Budby also accepted that at the time the Applicants were dismissed no one attained the views of the members of the BBAC about the descent of the Kitchener line. 255

Cecil Brown Junior

[225] Cecil Brown Junior said he attended the meeting in his capacity as a director of the BBAC and during the meeting the Board voted on the motion put as to whether Kitchener Brown’s descendants should be suspended from Barada Barna membership. He said he believed the minutes in respect of the motion and confirmed that they were accurate. 256

[226] Cecil Brown Junior said that he also made his own notes of the discussion which he provided. 257 His evidence was that he recalled Les Budby having a query about which way to vote. Cecil Brown Junior said that he recalled Les Budby was in a relationship with Loretta Roos and thought he may feel conflicted about the motion.

[227] Cecil Brown Junior said he voted to suspend the Kitchener line from membership and to end the employment of the Applicants and gave as his reasons that he believed that only Barada Barna people should be employed to undertake cultural heritage work on country; he did not believe that the Kitchener Line were Barada Barna people; and he believed that the Applicants were Kitchener Brown’s descendants. 258

[228] He said the Board agreed if the Kitchener line could prove their bloodline connection to an apical their membership would be reinstated and the Applicants would be reinstated as CHO’s. 259

[229] Cecil Brown Junior was taken to Hilda Maclean’s report and accepted the report was commissioned to work out the descendants of apical ancestors for the Barada Barna claim, and he was one of the Applicants in those proceedings. 260 In regard to the content of page 20 of the report, Cecil Brown Junior said it was not documented because there was no proof.261 He variously described Hilda Maclean’s conclusions, as “her assertion” and “just one opinion.” His evidence included that “...we also took the word of our elders, which is probably more relevant…”262

[230] It was put to Cecil Brown Junior that a report of Dr Leo Sackett came to the opinion that Maggie Barker was Widi. He responded that she was on both claims and it was deemed she had connection to both Countries. In regard to no birth certificate existing for Maggie Barker Cecil Brown Junior said there were records going back to the stations, and that they took the word of their elders. 263 In re-examination Cecil Brown Junior said he believed Dr Leo Sackett was under the impression Kitchener Brown was not connected to an apical.264

[231] Cecil Brown Junior was taken to paragraph 183 of page 60 of the Anthropology Report of Kim McCaul engaged by the State of Queensland in connection with the native title claims of the Barada Barna and Widi people. 265 It was put to him that Kim McCaul agreed with Hilda Maclean’s analysis of the likely descendants of Lizzie Payne. He accepted that but repeated that there was not proof, and that information given by their elders is probably more important.266

[232] Cecil Brown Junior said in response to Gavin Brown’s statement of 18 October 2017 that it is incorrect to say that there was no intention to reemploy the Applicants if they proved their bloodline connection to an apical. He said he recalled discussions with directors where it was agreed that if the Kitchener Line came back to them with proof confirming that they belonged to the claim group (and that proof was accepted), that the Applicants would be reemployed or reinstated to their casual roles depending on availability of work. 267

[233] Cecil Brown Junior said Carmel Dargan voted against the motion, and agreed that there were two votes against the motion, Carmel Dargan and Luarna Mitchell, 268 which is inconsistent with the minutes.

[234] It was put to Cecil Brown Junior in regard to the termination of the three Applicants that his statement said “...they had no bloodline connection to an apical…” 269, and this was not saying it was because they “believed” they were not Barada Barna. He said they had to show proof. A series of questions were put to Cecil Brown Junior concerning whether or not he believed as at 11 August 2016 that the descendants of Kitchener Brown were Barada Barna. His evidence was to the effect that they had to show proof. It was put to Cecil Brown Junior that he believed they were Barada Barna but he wanted further proof. He agreed with that.270

[235] Cecil Brown Junior appeared to agree with the proposition that Greg Brown, Les Budby, Gavin Brown and Jarrod Brown agreed that they were Barada Barna but wanted further proof. 271 This proposition was put to him again by Counsel for Carmel Dargan and he confirmed he believed Kitchener Brown was Barada Barna as at 11 August 2016 at the time of dismissal. He said this was from the elders saying he was connected to Country.272 However when asked during re-examination what the status of his belief was in the absence of proof he answered as follows; “We believed that he was not Barada Barna and that he may have been a community brother but he was not a Barada Barna person.”273

Greg Brown

[236] Greg Brown gave evidence that at the meeting he asked directors to state who their apical ancestor was and if they have given their proof of connection to the Corporation as requested by the Board. He said each member of the Board said their proof was submitted, however Carmel Dargan said “My apical is ancestor Lizzie Payne.” 274

[237] Greg Brown said that he responded to Carmel Dargan by saying words to the effect “Well you know Carmel, you’ve stated for a long time that Maggie Barker was your apical”. Greg Brown claimed that Carmel Dargan responded by saying words to the effect “Greg, we’ve made a mistake.” Greg Brown said he then said words to the following effect “Well Pickle, Carmel says she is under your line.” He said Pickle (Cecil Brown Junior) responded with words to the effect “We have no proof that Kitchener was Lizzie Payne’s son. We need proof.” 275

[238] Greg Brown said that following this discussion, Carmel Dargan left the room and Gavin Brown moved a motion to suspend the Kitchener Brown line, said Jarrod Brown seconded the motion, and a vote occurred by show of hands. He said he saw Gavin Brown, Jarrod Brown, Les Budby, Pickle (Cecil Brown Junior) and Graham Budby raise their hand. He said he raised his hand, and Luarna (Mitchell) voted no saying words to the effect that

“I am not going to vote ‘yes’ because I am not across the information relevant to this vote because it is my first director’s meeting.” 276

[239] Greg Brown said contrary to Gavin Brown’s evidence the Applicants would be reinstated if they proved a bloodline connection. Greg Brown said there was not a discussion about the inherent requirements because of their understanding of the fundamental protocol that only Barada Barna people work on Country. 277

[240] Mr Greg Brown said that following the vote he said words to the effect as follows:

“Following this motion being carried, Kitchener Brown’s family members employed as cultural heritage workers, Loretta Roos, Andrew Roos and Bree Dargan need to be told that their services are no longer required. If they prove their apical connection, we will offer to reinstate them. I propose that Les contact Loretta, Andrew and Bree.” 278

[241] Greg Brown said that at the Board meeting the Board agreed that the Applicants would be reinstated to their employment if they produced proof that they were related by blood to a Barada Barna apical ancestor. 279

Jarrod Brown

[242] Jarrod Brown said he recalled attending the meeting and one of the Board members saying to Carmel Dargan something like she had been asked to provide proof and nothing had come through. He said Carmel Dargan was asked to leave the room while the Board discussed the matter, a show of hands was taken and the vote was carried. 280

[243] Jarrod Brown said he voted in favour of suspending the Kitchener Line because he believed Kitchener’s descendants had not provided proof of their connection and you must be blood related to an apical ancestor to be Barada Barna. He said the Kitchener line first claimed that their apical was Maggie Barker but this claim was disproven so they then claimed another apical Lizzie Payne. He said it was strange that the Kitchener line jumped from one apical to another and he believed people know where they come from because their older relatives explain this to them. Jarrod Brown said he had heard Carmel Dargan say to him words to the effect “my family is from the Gulf Country” and he remembered sitting with his father and his grandfather while his grandfather explained to his father their family line. He said he heard his grandfather say something to the effect that the Kitchener line are not Barada Barna people. 281

[244] Jarrod Brown accepted that it is possible that someone who is forcibly removed from their home as a child might not have documents because they may have been removed as well, and there may not be documents in archives. 282

[245] In relation his evidence that he heard Carmel Dargan say her family is from the Gulf Country, he was asked when this was said, and he said he was unsure. He was asked where it was said, and he said he was pretty sure it was before or after a directors meeting. He did not know which one. It was put to him this was never said and he disagreed. 283

[246] In relation to his evidence concerning what his grandfather had said, he agreed that his grandfather was heavily involved in the repatriation of Kitchener Brown, and he agreed it was important for Aboriginal people to be buried on their own Country. He was asked if it were possible he mis-remembered the quote in his statement from his grandfather and he answered no. 284

[247] Jarrod Brown said he did not recall a conversation at the Board meeting about ending the employment of the three Applicants. 285 He agreed that he was unaware the decision to suspend the membership of the Kitchener Line would have the consequence that the three Applicants would be dismissed.286

Luarna Mitchell

[248] Luarna Mitchell said the Board meeting of 11 August 2016 was her first Board meeting as a director of the BBAC. 287 Luarna Mitchell gave evidence to the effect that at the meeting she heard Greg Brown ask each director to nominate their apical ancestor, and when Carmel Dargan stated Lizzie Payne either Greg Brown or Cecil Brown Junior asked for proof. Following that, Gavin Brown moved that the Kitchener Brown line be suspended from membership until proof of their connection to an apical is provided and accepted by the Board and Jarrod Brown seconded the motion.288

[249] Luarna Mitchell said she recalled at the time thinking because it was her first meeting that she did not have enough information to make a decision about her vote. Luarna Mitchell said she was aware that doubt surrounding the Kitchener Line had been raised previously, and referred to a time around 20 years ago her sister, who had done research on family relationships for native title issues, saying they had not found proof that Kitchener Brown had a bloodline connection. Luarna Mitchell said she felt she needed more information and was conscious that suspending a family was a big decision. 289

[250] Luarna Mitchell’s evidence was that she asked if she could abstain and Greg Brown replied to the effect that they would rather everyone have their say and not to be a fence sitter so she voted no. Luarna Mitchell said she recalled a Board member saying the three CHOs descended from Kitchener Brown should be terminated but offered employment if they prove their bloodline connection to an apical ancestor, and this was agreed. She said the minutes accurately reflected the discussion. 290

Communication of termination of employment

[251] Loretta Roos said that on 11 August 2016 she received a phone call from Les Budby who told her that Bree Dargan, Andrew Roos and herself were being ‘stood down.’ Loretta Roos said when she asked why; Les Budby told her that the BBAC Board said they needed to bring further proof of their connection to the claim group. 291

[252] Loretta Roos said it was difficult to describe how hurt she was by hearing the news and the actions of BBAC and its Board since that time. 292

[253] Andrew Roos also said his dismissal was communicated through Les Budby. 293

[254] Bree Dargan said she was on time off on 12 August 2016 when she learned she had been dismissed. She said her mother received a phone call from Aunty Carmel (Dargan) who explained what had happened. 294

[255] Loretta Roos said she did not receive anything in writing confirming the reasons for her dismissal other than a separation certificate. The separation certificate stated “shortage of work” as the reason for being dismissed but Ms Roos said this was not true. 295 Ms Roos gave evidence in support of her view that there was sufficient work to remain employed and referred to a cultural heritage team meeting with the BBAC Board on 5 June 2016 and assurances that there was enough work to the end of the year.296

[256] Loretta Roos said ORIC contacted Greg Brown who confirmed that her family line were still members of BBAC and that only benefits from the trust fund were to be suspended. Ms Roos said that ORIC relayed this information to her. 297

[257] Loretta Roos said as she was still confused she sent two emails on 17 and 25 August 2016 to Greg Brown asking for a formal/written explanation as to why she had been dismissed, but Greg Brown did not reply to those emails. Loretta Roos said she copied Jeff Dillon of Dillon Bowers Solicitors in to those emails and on 25 August 2016 Mr Dillon responded but Loretta Roos said he did not provide an answer to her queries. The emails were annexed to her evidence. 298

[258] Loretta Roos said on 25 August 2016 she asked Jeff Dillon for a copy of the minutes of the Board meeting on 11 August 2016 and the cultural heritage team meeting in June 2016. Loretta Roos said she received an email response from Ms Sherryn Armstrong of Dillon Bowers stating that they did not attend these meetings. Loretta Roos said this was not correct as Jeff Dillon did regularly attend Board meetings and he had made a witness statement in these proceedings confirming he did attend the BBAC Board meeting on 11 August 2016. Loretta Roos annexed to her statement a copy of the email and the statement of Jeff Dillon. 299

[259] Loretta Roos said that on 25 August 2016 she sent another email to Greg Brown asking for minutes from various Board meetings and seeking a reply to her previous emails and he did not respond. Loretta Roos said she decided to seek assistance from ORIC. 300

[260] Bree Dargan said that she contacted the Queensland South Native Title Service (QSNT) to try to understand what was being said about Kitchener Brown and his descent. 301 Bree Dargan said she attended a meeting with QSNT in Brisbane in early 2017 at which time they explained that they had assisted with the native title claim at an early stage when a preliminary genealogical report recommended that Kitchener Brown not be listed as an apical ancestor for the claim.302

[261] Greg Brown said that following termination he had a discussion with Bree Dargan, Loretta Roos and Andrew Roos and said they would be reinstated if they provided proof of their apical connection. 303

Relationship between Gavin Brown and Greg Brown

[262] Gavin Brown said in the days following the BBAC Board decision he received phone calls from many family members who said that his Uncles and Aunties were unhappy with the decision they had made and he should ring them. Gavin Brown said he decided to investigate the Kitchener issue himself. Gavin Brown said when he spoke to Uncle Lewis he said “Boy, what do you think you are doing? These people are family”. Gavin Brown said the elders confirmed that Kitchener and his descendants were always considered Barada Barna. 304

[263] Gavin Brown said Greg Brown dismissing his sons put a strain on their relationship. He also said he was becoming concerned at having voted the Kitchener line out of the BBAC and he began to feel isolated on the Board. Gavin Brown claimed it did not help when he tabled his nephew’s membership because Greg Brown did not want his nephew to be a member due to a personal conflict between Greg Brown’s son Jarrod and his nephew. 305

[264] Gavin Brown claimed that Greg Brown had lied to him when he told him that he and Cecil Brown Junior had the full support of the elders in removing the Kitchener line but in reality they had not even consulted the Elders. Gavin Brown said Uncle Lewis had told him that Kitchener was Barada Barna and his elders said the Dargan’s were family. 306 Greg Brown said Gavin Brown’s evidence on this point is untrue.307

Proposal for DNA testing

[265] Jeff Dillon’s unsworn statement, filed for the interlocutory hearing on legal representation, says that the Board did not consult him but only sometime later he advised there was no power of suspension under the Rules and that Carmel Dargan should be reinstated as a director, which occurred. The unsworn statement said that Jeff Dillon advised Carmel to obtain independent legal advice. Mr Dillon’s unsworn statement said that he advised the Board there was a specific process to be followed and that before the process was instituted, a report should be obtained from Hilda Maclean in relation to Kitchener Brown to gather all information available on Kitchener Brown for the purposes of establishing whether there was a proved connection to Lizzie Payne, their claimed apical. The statement included that after commencing her report, Hilda Maclean spoke to him and suggested the issue may be solved by DNA testing. The unsworn statement says he wrote to Carmel Dargan about this on 25 August 2016. 308

[266] Loretta Roos referred to Jeff Dillon’s letter to Carmel Dargan on 25 August 2016 and attached it to her statement. She said Jeff Dillon did not write to her about DNA testing. 309 Loretta Roos said at this point she was still a member of the BBAC because her membership was not properly cancelled until 29 April 2017. The letter to Carmel Dargan from Dillon Bowers Lawyers included the following;

“Dear Carmel

Re: BARADA BARNA REGISTERED NATIVE TITLE CLAIM

I have been instructed by the Board of Directors to investigate the connection that Kitchener may or may not have to any apicals of the Barada Barna people. The genealogist has advised that there is no direct documentary evidence which demonstrates that Kitchener was a Barada Barna person descended from any of the named apicals. There is however circumstantial evidence but this not properly resolve the issue. The genealogist has suggested that the way to resolve this is for DNA testing to take place……”

[267] Loretta Roos said that the BBAC Board offered to do DNA testing on behalf of the Roos and Carmel Dargan. Andrew Roos said that this was the first time to his knowledge that such tests had been requested of his people. 310

[268] Les Budby said he believed DNA testing is disrespectful and wrong if it involves exhuming deceased ancestors. He said DNA testing would not be conclusive and they would not be able to base a decision on a family’s connection through DNA testing in this case, unless the apical named was unearthed along with other members of that family that have since passed away, at which point it becomes culturally inappropriate. 311

[269] Carmel Dargan said in her evidence that the Saturday following the meeting of 11 August 2016 she received a phone call from a person named Mary Bird, who intimated to Carmel Dargan some discontent with what occurred at the meeting of 11 August and that she knew that they were in the same predicament as Uncle Frank Brown and his family. Carmel Dargan claimed Mary Bird told her that their grandmother told them that she was pregnant with when their grandfather Albert married her, and the father of the child was a white man, and was Uncle Cecil’s father. 312

[270] Carmel Dargan confirmed the relationship she was referring to was the relationship between Albert Brown and Cecil Brown Senior (otherwise known as Chum) who is the father of Cecil Brown Junior. Carmel Dargan’s evidence referred to the meeting in 2015 about the adoption of Uncle Frank Brown into the family. 313 Her evidence appeared to be that Cecil Brown Junior knew that his grandmother had said Albert Brown is not his biological grandfather and his grandfather is a white man.314

[271] Carmel Dargan said she went to Jeff Dillon’s office on 24 August and informed him of what Mary Bird had told her. Carmel Dargan said she did this because Jeff Dillon had proposed DNA testing and had spoken about Uncle Cecil and Uncle Bully having the DNA. Carmel Dargan said she questioned how the DNA testing could work, given what she had been told by Mary Bird. Carmel Dargan said Jeff Dillon told her he would speak to Cecil Brown Junior and the Board. Carmel Dargan’s evidence was that when she later spoke to Mary Bird, Mary Bird recanted what she had said earlier and said she only did it for Uncle Bully (Albert “Bully” Brown, the son of Kitchener Brown), that she had made a mistake and was sorry. 315

[272] It was submitted for Loretta and Andrew Roos that DNA testing is offensive, and the unchallenged evidence of Professor Kowal provided insight into the development of DNA testing to prove membership of a group. Professor Kowal’s evidence included that: “The possibility of genetic testing providing useful information in the present case is very low.” I have ultimately concluded that the evidence concerning the offer to conduct DNA testing has not assisted me in determining the matter.

Alleged statement of Gavin Brown on or about 17 September 2016

[273] Cecil Brown Junior said that the BBAC conducts information sessions in various cities and towns in Queensland. He said during a road trip on or about 17 September 2016 he, Gavin Brown, Greg Brown, Les Budby and Jarrod Brown had a discussion about Kitchener and Gavin said words to the following effect:

“I support the idea that Kitchener did not belong to Barada Barna. There is no evidence that he was Barada Barna.”

Information Session Brothers’ Leagues Club Innisfail 19 September 2016

[274] Greg Brown said he, along with the Directors of the BBAC, attended Barada Barna Information Sessions at Brothers Leagues Club Innisfail, and descendants of Kitchener Brown also attended, including Loretta Roos. He said a discussion occurred about Kitchener Brown and requests were made of Carmel Dargan for proof that Kitchener was a bloodline descendant of an apical. He provided a copy of the minutes of the Information Session and said they accurately reflected the discussion. 316

Dr Hilda Maclean Report 24 October 2016

[275] Greg Brown said the Board commissioned a further report from Dr Maclean to assess the evidence produced to date to advise if Kitchener Brown could be connected, by blood, to an apical ancestor. He said upon reading the report his view was fortified that Kitchener Brown was not a blood descendant of an apical. 317

Statement of Les Budby 10 November 2016

[276] Les Budby said he wrote a statement out himself as he felt bad about what had happened and attached a copy of the statement to his affidavit, which was to the effect that his elders had told him that Kitchener Brown was, and always has been, recognised as a Barada Barna man. 318 Les Budby accepted that Loretta Roos had started her proceedings against Winnaa at that stage and he had started dating Loretta Roos in late October 2016.319

Acceptance of Kitchener Brown Descendants November 2016

[277] Loretta Roos said that Greg Brown was still accepting Kitchener Brown’s descendants in November 2016 and provided with her statement copies of BBAC membership application forms and approval letters for members of the Dargan and Roos families. 320 Greg Brown was taken to the application form of Shianne Roos, the niece of Loretta Roos and was asked why she had been accepted if the motion was that her line was suspended. Greg Brown responded because they were still chasing up apical proof, and agreed that the Kitchener Line could come in subject to further proof.321

Formal member vote on membership of Kitchener Brown line 29 April 2017

[278] Ms Roos said that on 10 January 2017 the Board met and voted to cancel each one of her family’s memberships, and this was followed up with a formal written notice which was sent by Mr Dillon’s office. Ms Roos said they had to reply to Mr Dillon’s office if they objected to their cancellation, which she did. Ms Roos said on the same day Ms Carmel Dargan’s son was accepted as a BBAC member. 322

[279] Ms Roos said in an Affidavit to the Federal Court annexed to her statement that on Saturday 29 April 2017 she attended a meeting where a vote was taken to decide whether her family would remain members of the BBAC and whether Carmel Dargan would remain in the Board. Ms Roos said she lost that vote as did Carmel.

[280] Ms Roos said during the meeting on 29 April 2017 where their membership of the BBAC was voted on the following exchange occurred:

Ms Roos: “Are you going against your Elders’ knowledge and what they taught you?”

Mr Greg Brown: Yes.”

[281] Ms Roos said this amazed her because it is against Barada Barna lore to go against your Elders. It is lore that all Aboriginal peoples observe. 323

[282] Gavin Brown said that his increasing awareness of what was going on lead him to start defending Carmel Dargan and Loretta Roos. He said by this time the Board was openly hostile toward him, calling him a “dog” and swearing at him and verbally abusing him. He said at the special general meeting on 29 April 2017 he publically challenged Greg Brown about something he had said after the dismissals. Gavin Brown claimed the following conversation took place between himself and Greg Brown;

Greg: “The Dargans are so fucking stupid they don’t realise that their bloodline is actually Saltbush George”

Me: “Who told you this?”

Greg: “Dad told me”.

[283] Gavin Brown said when he raised this with Greg Brown he denied it and claimed Gavin Brown did not know what he was talking about. Gavin Brown said he voted against removing the Kitchener family line and Carmel and he were voted off the BBAC Board. 324 In response to this evidence of Gavin Brown, Cecil Brown Junior said that he was not aware of, nor had he seen, any proof that the Kitchener Line is or could be descendants of any other apical or Saltbush George.325

[284] Greg Brown said at the General Meeting a lawyer for the BBAC gave a short presentation which was followed by a presentation from HWL Ebsworth Partner Mr Philip Hunter, representing the Kitchener Line. He said following the presentations the members voted 162 to 107 that the Kitchener Line was not eligible for membership of Barada Barna. 326

[285] Greg Brown said that Gavin Brown’s evidence concerning the alleged conversation is untrue. He said he did not believe the Kitchener Line is connected to Saltbush George and his father had not told him anything to that effect. 327

SUBMISSIONS

Onus of proof

[286] To establish the s.351(2)(b) defence the Respondent must satisfy the FWC that the decision to dismiss the Applicants was taken because of the inherent requirements of the positions. Katzmann J in Shizas v Commissioner of Police 328 (Shizas) observed that s.351(2)(b) did not come within the terms of the reverse onus provision of s.361, and said it is highly unlikely that the Parliament intended the onus lie with the employee to prove the negative, particularly in relation to a matter that would be peculiarly within the knowledge of the employer.329

[287] Because the contravening behaviour is admitted, the rebuttable presumption does not apply as there is no contravening conduct that arises out of s.351(2).

[288] The exception in s.351(2)(b) does not come within the reverse onus provision in s.361 and in this case s.361 is not engaged. This point was conceded, at least by Ms Dargan. 330 The Respondent bears the onus of making out a s.351(2) defence. The civil standard of proof applies.

[289] In Shizas Her Honour Katzmann J said as follows in the context of that case where the Assistant Commissioner of Police refused to employ Mr Shizas on the basis of his view that Mr Shizas was more likely to be injured in carrying out the physical aspects of his duties than a person without the particular medical condition that Mr Shizas suffered from:

“..He may have been wrong in his belief. Indeed, the evidence before the Court indicates that he probably was. But this is not a review of the merits of the decision and it is not a claim which falls for assessment under the Disability Discrimination Act. Mr Shizas must fail if the Commissioner satisfies the Court that he took the action he did because of the inherent requirements of the position even if the evidence establishes that Mr Shizas could in fact fulfil them.”

[290] The Respondent submits that ratio, applied in this case, means that even if the Commission were to find that the Applicants could or did fulfil the inherent requirements of the CHO positions, if the Commission is satisfied that the Respondent took the action it did because it genuinely believed the Applicants did not fulfil those inherent requirements, the Applicants’ case must fail.

[291] The Respondent submits making out such a defence requires satisfying the Commission, on the balance of probabilities that a substantial and operative reason for dismissing the Applicants was because the Respondent believed that the Applicants did not meet the inherent requirement of the CHO position. 331

Standard of proof – multiple decision makers

[292] The decision makers were the Directors of the BBAC who attended the 11 August 2016 Board meeting and voted to suspend the descendants of Kitchener Brown (including the Applicants) from Barada Barna membership and then dismiss the Applicants. Those Directors were Gregory Brown; Cecil “Pickle” Brown, Graham Budby, Gavin Brown, Jarrod Brown, Les Budby and Luarna Mitchell.

[293] At the meeting on 11 August Greg Brown says that Carmel Dargan left the room before the vote. The minutes do not record her voting and Carmel Dargan’s own evidence is she could not recall voting, however Cecil Brown Junior gave evidence she voted against the motion. I am satisfied on the balance of probability that Carmel Dargan did not vote on the motion. I am satisfied that six of the seven voting board members voted in the resolution with six in favour and Luarna Mitchell being the only vote against the motion. All the Board members gave evidence.

[294] Submissions for the Applicants referred 332 to the Federal Court decision of Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne333 which said as follows:

“In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorized officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned with the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do than and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed between them and the reasons which in the end are the operating reasons for the policy agreed upon.”

[295] Submissions also referred to other decisions which deal with ascertaining the mind of a decision maker where multiple decision makers are involved. 334

[296] Having referred to the various authorities on the point, I accept the proposition that in order to succeed the Respondent will have to persuade the Commission that a majority of the decision makers who voted (i.e. over 50% of them) genuinely believed that, on 11 August 2016, the Applicants were not Barada Barna. In effect this means that the Commission has to accept that the state of mind of at least four of the seven BBAC directors for the Respondent was such that they held the required genuine belief in order for the Respondent to succeed on its s.351 (2)(b) defence. If I am wrong about excluding Carmel Dargan, and consequently five votes were required to constitute a majority, for reasons given below that has not altered the result. 335

Submissions on amendments to response

[297] It was submitted for the Applicants that the Respondent’s initial Form F8A stated “one of the reasons” the Applicants were dismissed despite numerous opportunities was they were “unable to establish an ancestral connection to the Barada Barna people”. Further the Form F8A said “Discussions about establishing an ancestral connection are ongoing. The Respondent has offered DNA testing to assist the process. 336

[298] It is submitted this initial defence said the reason for dismissal was being unable to “establish an ancestral connection to the Barada Barna people”. Therefore the reason given for the dismissal was not that the each Applicant is not a Barada Barna person. Further, the statement that discussions were ongoing is suggestive that the connection issue was far from settled. Further there was no mention of “genuine belief” or “honest belief” in the defence, and the defence was put on an objective basis. 337

[299] It was also submitted that in the intervening period the judgement in Shizas was handed down, and at that point the Respondent abandoned its orthodox inherent requirements defence when it filed an amended Form F8A on 1 August 2017 however failed to draw a distinction between the CHO ‘role’ and the CHO ‘position’ but introduced the notion of ‘indigenous lore’.

[300] It was submitted that this was the first time that the Respondent introduced a subjective element to its defence in response to the decision in Shizas.

[301] It was also argued that the Respondent began to conflate its initial contention that it dismissed the Applicants because they were “unable to establish an ancestral connection to the Barada Barna people” with its modified position that it “genuinely held the view that the applicant was not Barada Barna”. It was put that the two concepts are different. 338

[302] On 28 August 2017 the Respondent filed its Second Further Amended Response raising an additional defence under s.351(2)(a). It was submitted the Second Further Amended Response reiterated:

(a) Establishing an ancestral connection to the Barada Barna people to the satisfaction of the Respondent is an inherent requirement of employment as a Cultural Heritage team member;

(b) It is often a contractual requirement that persons filling the role of CHO are members of the Barada Barna people;

(c) This is an inherent requirement of the role; and

(d) The Respondent has formed a view that the Applicant was not Barada Barna.

[303] Submissions emphasised no distinction was drawn by the Respondent between the CHO ‘job’ and the CHO ‘role’, ‘employment as a Cultural Heritage team member’, and the CHO ‘position’. The Applicants submitted that the response referred to the Respondent’s ‘policy’ being based on ‘indigenous lore’ but does not state it is based on Barada Barna lore. It was submitted no such ‘lore’ existed. 339

Inherent requirement

[304] It was submitted for Loretta and Andrew Roos and accepted by the Respondent that the determination of the inherent requirements of the position is an objective one. 340 They also submitted that there is a difference between an inherent requirement and a preference, referring to non-Barada Barna persons performing the work before 2005. Loretta Roos submitted that three matters have to be addressed concerning inherent requirement:

(i) What is the particular position?

(ii) What is the requirement of the position? and

(iii) Is the requirement in question an inherent requirement?

[305] The High Court decision in Qantas Airways Limited v Christie 341 (Christie) was referred to in the closing submissions of all parties. The closing submissions for Carmel Dargan helpfully summarised what appears to be an agreed position that an inherent requirement is an essential feature or defining characteristic of employment in the relevant position,342 and that is ‘a matter of objective fact’ to be determined in all of the circumstances of the case and not a matter of ‘mere speculation or impression’.343 Among other things it depends on;

  (a) The terms of the employment contract; 344

(b) The nature of the employers business and its organisation; 345

(c) The functions the employee performs; 346

(d) Any legal requirements for performing those functions; 347and

(e) The circumstances in which the employee is to perform those functions. 348

[306] Her Honour Justice Gaudron said at page 295 of the decision in Christie;

“..A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement was dispensed with...”

[307] His Honour McHugh J stated:

“..In the report of the International Labour Organisation’s Commission of Inquiry into the observance of the Discrimination Convention by the Federal Republic of Germany, “inherent” was interpreted to mean “existing in something as a permanent attribute or quality; forming an element, especially an essential element, of something; intrinsic, essential…”

[308] His Honour Kirby J stated:

“Thus the “inherent requirements” of the particular position must be those which can be regarded as permanent and integral”.

[309] It was submitted for Loretta and Andrew Roos that witness evidence of the inherent requirements in Christie was notable by its absence, and on the evidence of this case, being Barada Barna is not an inherent requirement of the CHO position. It was put that the pre-2005 CHO role was the same as the August 2016 CHO role, and it was put that this was a fatal flaw in the Respondent’s defence. 349

[310] Further, it is said that contractual documentation does not demonstrate the inherent requirement claimed by the Respondent, and supports the Applicants’ cases. It was also submitted that the exploration agreements do not assist the Respondent as any constraint in them is a restraint the BBAC imposed on itself and cannot be something intrinsic to the Respondent CHO positions. 350

[311] The Respondent submitted that the inherent requirement is enshrined in the objects of the BBAC Rule Book at 3.2(d) to (g). In response it was put for Loretta and Andrew Roos that the BBAC Rule Book did not apply to the Respondent, or mining companies, or persons not members of the BBAC and clause 3 was aspirational. The Rules became operative on 16 January 2016.

[312] It is also put that the BBCT Deed referred to employment opportunities for Aboriginal people living in Central Queensland, in addition to referring to Barada Barna people. 351

[313] It was submitted that the Respondent’s analogy of the requirements to hold office as the President of the United States is distinguishable from those for the CHO as CHOs do not hold office – they are employed.

[314] The Respondent submitted that if the requirement for a CHO be a Barada Barna person was dispensed with, the CHO would not be essentially the same. Further the role could not be performed by a non-Barada Barna person because that person would not be permitted to walk on or speak for Country. Nor would that person be given the knowledge of the particular Barada Barna traditions and culture, and without such knowledge the full range of CHO duties could not be performed. 352

[315] The Respondent referred to the following passage from the decision in Qantas Airways Limited v Christie for the purpose of addressing the distinction between a particular position and a particular job:

“In most cases, the distinction between the requirements of a position and the requirements of a job will be of little significance. But it is a mistake to think that there is no distinction between “a particular position” and “a particular job”. In some cases the distinction between the inherent requirements of a particular position and those of a particular job, although subtle, may be material. This is often likely to be the case where qualifications are concerned, particularly those qualifications that are not concerned with the physical or mental capacity to perform the tasks involved in the position. Thus to be an American born citizen is an inherent requirement of the position of President of the United States, but it is not an inherent requirement of the “job” of President if that term refers to the work done by the President.”

[316] The express terms of the contract of Loretta Roos were referred to in submissions. It was put that nowhere is it said that a Field Officer must be a Barada Barna person, and being a representative of the Barada Barna People is not the same thing. 353

[317] Loretta Roos said when she commenced employment with Woora, or the other companies, nothing was said about inherent requirements or that she had to be Barada Barna. It was also submitted that the evidence of Graham Budby was that non-Barada Barna people were able to carry out cultural heritage work and did so before 2005, and therefore being Barada Barna was not essential. It was said there has been a shift in preference but this is not the same as an inherent requirement. 354

[318] It was submitted for Loretta and Andrew Roos that the exploration agreements are not uniform in their wording and there is not a correlation between them and the contracts of employment, and the parties to the exploration agreements are not the same as the parties to the employment contracts. 355 The Respondent said the Applicants not being party to the exploration agreements was off-point and that the exploration agreements are evidence that inform the Commission as to what the inherent requirements of the CHO positions in fact were.

[319] The Respondent submit the submissions of the Applicants misunderstand Christie when pointing to evidence that a non-Barada Barna person could perform the tasks that a CHO performs, but disregard the representative nature of and responsibilities held by CHO’s underpinned by the traditional lore observed by indigenous people that you do not walk on a traditional owner’s country without permission. 356

[320] The submissions for Carmel Dargan referred to the decision in Walsh v St Vincent de Paul Society Queensland (No 2) 357 where the Queensland Anti-Discrimination Tribunal held it was not an inherent requirement for the volunteer chapter president of the Society to be Catholic. It was submitted that the Respondent has not proved it was an inherent requirement of the CHO position be occupied by a Barada Barna person.358

[321] The submissions referred to the following part of the decision:

“To my mind, these submissions take matters to far. I do not think that it is established, objectively, that it is necessary for a president to be Catholic, although I do accept that ignorance of the spiritual aspects of the president’s obligations, on the context of the Society being a lay Catholic organisation, would render it more difficult for a non-Catholic, as opposed to a Catholic, to carry out particular duties relating to Catholic principles and beliefs. I conclude that being a Catholic is not essential and indispensable to carry out the duties of president, although it may well be desirable, and I think that the position, overall, would be essentially the same if there were no requirement that a president be Catholic, especially given the status and the role of the Spiritual Advisor, who may well be a priest, in a conference.”

[322] It was submitted the defence failed in that matter, and it is analogous to this matter and therefore, it is not an inherent requirement of the CHO position to be Barada Barna. 359

[323] It was submitted that although Bree Dargan had been unable to obtain a copy of her employment contract, she recalls it did not say anything about her having to be Barada Barna, and nor did her letter of offer, or the Respondent’s General Policies and Procedures. Further Bree Dargan said she was never told of such a requirement.

[324] I agree with the submission that it could be inferred that Bree Dargan’s employment contract would be materially the same as Loretta Roos’ employment contract. It was submitted the key responsibilities do not require a person to be Barada Barna. 360 It was submitted non-Barada Barna archaeologists are involved in certain tasks, Aboriginal people other than Barada Barna people could come onto Barada Barna Country with permission, and information was shared with representatives of mining companies who sometimes accompanied CHOs.361

[325] It was submitted for Loretta and Andrew Roos that the lore (referred to by the Respondent) was in respect to passing on knowledge with respect to matters such as sacred sites and the traditions of the Barada Barna people as part of the collective knowledge of the elders, and not a part of the position of a CHO. 362

[326] The Respondent submitted that this argument ignores the significance of archaeologists and resource company representatives being invited onto Country, and that the purpose of the invitation was not to perform cultural heritage work or “speak for Country” the way a CHO must do. The Respondent also said this argument ignores the evidence that non-Barada Barna people are not privy to specific knowledge of sacred sites and/or artefacts. Further the parties to exploration agreements are bound to keep Barada Barna sensitive information in confidence, and not enter particular areas and respect that Barada Barna people may wish to discuss confidential or sensitive matters amongst themselves. Further it was said a CHO “speaks for Country”. 363

[327] It was also put for the Applicants that non-Barada Barna persons had performed CHO work on Barada Barna land on previous occasions and therefore it cannot be a defining feature or essential characteristic of the position. 364 On this basis it was asserted the Respondent had failed at the first step. The Respondent said this has not occurred since 2005, and even then it was a stop gap, temporary and by invitation only, and was not demonstrative of a rule. The Respondent said even then, non-Barada Barna Aboriginal persons who assisted were not taken to sacred sites.

[328] The Respondent submits that the traditional protocol, or lore, of the Barada Barna people is that only a Barada Barna person (defined also by reference to traditional protocol as someone who is a bloodline descendent of an apical ancestor) should perform cultural heritage work on Country. Being a Barada Barna person is therefore a qualification that a CHO must have, and that is the relevant inherent requirement. 365 It was said that the Applicants, as Kitchener Brown’s descendants, were employed based on the belief they were Barada Barna.

[329] The Respondent sought to distinguish the decision in Walsh v St Vincent de Paul as it was not a case under Part 3-1 of the Act and in the matter the Tribunal assessed the “genuine occupational” requirements for the position which is not the same as assessing whether a person made a decision because of the inherent requirements of the position.

[330] As it was put by Mr Dwyer for the Respondent, it is trite to say that Aboriginal culture includes a very steep spiritual connection to their recognised country, and for many Aboriginal people affected by the stolen generation, the removal of ancestors from country has created a fractured sense of their identity and a great sense of loss. 366

[331] It is apparent on the evidence that the CHO role is a significant one identifying sacred site practices and important artefacts. The respondent’s witnesses all attested to a CHO needing to be a Barada Barna person. It was generally accepted by all witnesses including the Applicants’ witnesses that it was an accepted cultural tradition that you do not go onto another man’s land without permission. The Respondent has argued that this lore is the origin of the inherent requirement.

[332] It is clear Barada Barna people regard certain information on their Country about sacred sites and other matters as sensitive and this information is not to be shared with non-Barada Barna persons. Graham Budby gave evidence that persons who are not Barada Barna could not perform the full range of cultural heritage duties because Barada Barna people regard certain information about sacred sites and other matters as sensitive and this information is not to be shared with non-Barada Barna persons. The evidence concerning the importance of certain knowledge not being shared was not contradicted by the Applicants.

[333] The exploration agreements and the employment contract tend to corroborate the witness evidence concerning what was understood about the CHO role being a representative of the Barada Barna people. The first two sentences that appear in the position description annexed to the statement of Loretta Roos after the words “Key responsibilities/position summary are “A representative of the Barada Barna People employed to conduct field surveys and inspections during Surface Disturbance activities, to assess those areas for items of Aboriginal Cultural Heritage significance. The cultural heritage field officer should be recognised by their peers as a person with the knowledge and responsibility to make decisions regarding the proper identification and management of their Aboriginal Cultural Heritage.”

[334] Carmel Dargan’s oral evidence concerning the email about the CHO roles from Graham Budby was as follows; “Initially they got those roles through Graham Budby emailing me to ask me could I put through three family members to work on funding and cultural heritage…” 367 This evidence is reasonably clear Carmel Dargan understood the persons being sought were family members.

[335] There appears to be nowhere in the evidence that suggests that anyone, other than persons thought to be Barada Barna at the time the positions were advertised, would be considered for the positions.

[336] The very limited evidence of examples of non-Barada Barna Aboriginal persons being invited to assist in CHO roles in the period before 2005 does not, in my view, relegate the importance of being Barada Barna from being inherent to the position, to something more akin to a preference of the Barada Barna people, as submitted for the Applicants. There was evidence that explained the specific circumstances which led to the particular temporary arrangements referred to in the evidence at the relevant time.

[337] I am also of the view that the decision in Walsh v St Vincent de Paul is distinguishable. The activities of the lay chapter president considered in that matter could not be equated with the activities of a parish priest in regard to matters spiritual or doctrinal in nature. Nor could they be compared to an example referred to in Walsh of a parish priest insisting that lay parishioners selected to assist in communion service be Catholic. 368 If a comparison between that matter and this matter is to be made, it is on those kinds of matters that some parallel might be drawn.

[338] I accept that the evidence of Barada Barna cultural customs and traditions overwhelmingly demonstrated the existence of accepted and understood Barada Barna lore that the nature of the role of a CHO meant that it was accepted and understood amongst the Barada Barna people, even without it being expressly said or written, that an inherent requirement of the position was to be Barada Barna. It was also clear from the evidence the roles were initially offered to the three Applicants because it was believed at the relevant time they were recognised as being Barada Barna.

[339] In conclusion it was an inherent requirement of the particular position held by the three Applicants to be Barada Barna.

Genuine Belief

[340] The picture that emerges from the evidence is that there had been an acceptance for many years that Kitchener Brown was Barada Barna but that with the movement toward native title and the establishment of the BBAC, a lack of evidence about which apical Kitchener Brown’s Line was connected to brought the issue under closer scrutiny.

[341] It was noted that although the Respondent was the employer it appears that the decision to dismiss was taken by the BBAC Board which was then ‘rubber stamped’ by the Respondent in the sense referred to by his Honour Justice Evatt in Voigtsberger v Council of the Shire of Pine Rivers (No.2). 369

[342] It is necessary to look at the reasons of each individual to identify the substantial and operative reason for the decision. It was submitted for Carmel Dargan that if it is not possible to identify a substantial and operative reason being that the dismissal was because of the inherent requirements of the position, then the Respondent must fail because they have not discharged their burden to prove that was the reason. 370

[343] It was put against the Respondent that its case had never been that the inherent requirement was a requirement of evidence or proof of being Barada Barna (my emphasis), and to say so in closing submissions is not consistent with the evidence of the witnesses. It was submitted that on Graham Budby’s evidence, he knew when he employed the three Applicants that they still had to prove their bloodline connection.

[344] Mr Dwyer submitted the genuine belief could be attended by doubt, but it was still a belief as at 11 August 2016. He likened the circumstances to Shizas and submitted the Assistant Commissioner of Police in that matter would have been attended by doubt (as to capacity of the person to perform the inherent requirements of the role given a medical condition) but made the decision the person could not perform the role because of the inherent requirements.

[345] Mr Dwyer submitted this is not a matter that is capable of an absolute belief because of the nature of the issue. He said the best that could be done in the circumstances was to invite an opportunity to provide proof, but a decision had to be made going forward. 371

[346] It was submitted for Loretta and Andrew Roos that the words “genuine belief” or “honest belief” are not used in s.351(2)(b), and they derive from the decision in Shizas. It was also submitted that given the consent determination and the other evidence, the inference that the decision was not taken because of the inherent requirements was reasonably open. 372

[347] Submissions for Loretta and Andrew Roos referred to a number of authorities dealing with the expressions genuine, honest and belief to make the case that consideration in such matters of whether the belief was reasonable is inevitable to ensure fanciful and absurd beliefs do not form the foundation of a defence. 373

[348] Submissions for Loretta and Andrew Roos put that the understanding of the expert evidence as displayed by witnesses for the Respondent was unconvincing and not credible regarding the anthropological and genealogical reports because the reports show the Applicants are Barada Barna. It is argued this is a key distinction between this matter and Shizas as the Assistant Commissioner in that matter was a convincing witness having considered expert information, whereas witnesses for the Respondent were unconvincing. 374

[349] It was submitted for Loretta and Andrew Roos that at best the evidence may support that only four of the directors held a genuine or honest belief about the matter, being Greg Brown, Jarrod Brown, Graham Budby and Cecil Brown Junior, however it was put that on the evidence of Cecil Brown Junior that finding is not open.
[350] The manner in which the suspension and subsequent terminations occurred was hamfisted. There was no notice of the issue on the Board meeting agenda and some Board members were aware it would be raised whilst others were caught by surprise. The motion appears to have been put and voted on without a considered discussion or a debate despite the complexity of the issue. It also seems from the evidence the Board was advised after the meeting it did not have the power to suspend the Kitchener line despite purporting at the time to do so.

[351] On the basis of evidence summarised above, I have been satisfied on the balance of probability that at the time the decision was taken on 11 August 2016, the views of each of Greg Brown, Jarrod Brown and Graham Budby had crystallised to a point that they each held a genuine or honest belief that the Applicants were not Barada Barna at the time. Whilst the question is finely balanced given even these three witnesses talked in terms of doubt, suspicion and or lack of proof, their evidence was sufficiently clear to weigh in favour of having arrived at the required state of mind. On the other hand it was clear Luarna Mitchell was not of such a belief at the time of the meeting.

[352] I have been satisfied from the evidence of both Les Budby and Gavin Brown that neither man held a genuine or honest belief that Kitchener Brown was not Barada Barna when they voted at the meeting. I have accepted the evidence of both of those witnesses concerning the respective reasons as to why they voted to suspend the Kitchener line at the meeting despite not holding that belief. Gavin Brown was not required for cross examination. I am inclined to accept his evidence regarding his reason for voting for the motion, which was in short that Greg Brown told him to, and that his state of mind at the meeting was that he did not genuinely or honestly believe that Kitchen Brown was not Barada Barna.

[353] I also accept the detailed evidence that Les Budby gave that led him to vote for the motion despite his belief at the time that Kitchener Brown was Barada Barna.

[354] That leaves Cecil Brown Junior. His oral evidence contradicted his earlier written evidence and in my view his oral evidence, when tested on his own beliefs on the matter, revealed that at the relevant time he believed Kitchener Brown was Barada Barna but it was the failure to produce evidence of that matter that caused him to vote in favour of the motion, not as has been put for the Respondent.

[355] Near the conclusion of his evidence Cecil Brown Junior appears to accept that at the time of the dismissal the Board still believed the descendants of Kitchener Brown were Barada Barna, but they needed more proof. He confirmed this when asked again about this by Counsel for Carmel Dargan. However in the course of re-examination he then appeared to contradict his earlier evidence by saying that in the absence of proof they believed that he was not Barada Barna and that he may have been a community brother but he was not a Barada Barna person. 375

[356] It needs to be remembered that the memberships of the Kitchener line were suspended (pending the provision of evidence) suggesting the matter had not been finally determined. The employment of the Applicants was then terminated. The suspension, and the evidence more generally points to suspicion and doubt about the standing of the Applicants, and not a positive genuine belief that they did not meet the inherent requirements of the position.

[357] I cannot be satisfied that Cecil Brown Junior held a genuine or honest belief that Kitchener Brown was not a Barada Barna person at the time he voted. In Cecil Brown Junior’s case, I am satisfied he voted for the resolution because Carmel Dargan had been unable to provide proof, not because he believed that the Applicants were not Barada Barna.

[358] In closing submissions Mr Watson submitted one possibility for Cecil Brown Junior’s change in evidence may have been on the basis of the inconsistency between the evidence before the Federal Court in 2015, and the evidence in this matter, and that Cecil Brown Junior dealt with that by saying he had a belief on 11 August 2016 (that Kitchener Brown was Barada Barna) but the belief had to be proven. 376 His doubts and or suspicions about the matter did not rise to a positive genuine or honest belief.

[359] I am not satisfied that a state of doubt, and seeking further proof, accords with the requirement to have reached a genuine belief. It falls short of the state of belief required for the Respondent to meet the burden of proving the exception in s.351(2)(b) applies. The decision makers needed to have arrived at a positive belief, even if they were wrong, that the Applicants were not Barada Barna. At best only three of the seven who voted had arrived at such a belief. That is not a majority, and therefore does not represent the collective mind of the decision maker.

[360] Regarding Mr Dwyer’s closing submission on the matter of doubt, I have concluded that Shizas is distinguishable on that point because the decision maker in Shizas did decide the question. In this matter for at least four of the seven members of the Board, the matter had not been positively decided. For this reason I have concluded the collective mind of the decision maker concerning the substantial and operative reason for the decision was that the Applicants had not yet proved that they were Barada Barna, and that is different to concluding they were not Barada Barna.

[361] I have noted that part of the Applicants’ cases appeared to be that if there were a view that the Kitchener line was, or may not be Barada Barna, why was this was not brought to the attention of Dowsett J during the Federal Court proceedings. However there is evidence in the form of the statement of Cecil Noel Brown dated 30 March 2015 and provided to the Federal Court that Cecil Noel Brown did not believe Kitchener Brown was the son of Lizzie Payne/Hatfield, or the blood brother of Cecil Noel Brown’s father Albert Brown, and was instead a community brother. At the same time the statement of Cecil Noel Brown does not say Kitchener Brown was not Barada Barna, and to the contrary, indicates that he believed he was Barada Barna describing his being returned to “his own Country” when the State made arrangements for his reburial at the request of the Barada Barna people. 377

Anti-Discrimination Act Defences

[362] The Respondent relies in the alternative on defences under s.351(2)(a). Section 104 of the Anti-Discrimination Act 1991 (Qld) (ADA) reads as follows:

104 Welfare measures

A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act.

Example 1—

It is not unlawful for a bus operator to give travel concessions to pensioners or to give priority in seating to people who are pregnant or frail.

Example 2—

It is not unlawful to restrict special accommodation to women who have been victims of domestic violence or to frail, older people.

Example 3—

It is not unlawful to establish a high security patrolled car park exclusively for women that would reduce the likelihood of physical attacks.

[363] Section 105 reads as follows:

105 Equal opportunity measures

(1)A person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with this Act.

(2)Subsection (1) applies only until the purpose of equal opportunity has been achieved.

[364] Submissions for Loretta and Andrew Roos included that:

(a) The decision makers’ state of mind is not relevant to s.351(1)(a) and the actions of the employer under the ADA are largely determined objectively.

(b) The FWC must objectively define the group; and

(c) Objectively identify the common attribute; and

(d) Objectively identify the members of the group; and

(e) Objectively identify the disadvantage faced by the group and the need for the welfare measure; and

(f) Objectively identify the purpose of the measure; and

(g) Objectively assess whether or not the welfare measure is likely to alleviate the disadvantage. 378

[365] I accept the submission for Loretta and Andrew Roos that these are questions of fact and do not provide for subjective interpretation of who are and who are not Barada Barna people. People are either members or they are not. The Commission would need to decide that issue if the defences are to be made good and only then could the Commission determine whether the Respondent actions were lawful. The “attribute” referred to is defined in s.7 of the ADA as including “race” and it was submitted that being a Barada Barna person would fall within this definition.

[366] It was submitted for Loretta and Andrew Roos that the Applicants at the time of dismissal were still members of the native title claim group and still members of the BBAC because the statutory procedure for cancelling their membership had not been followed and the purported cancellation was void, and according to the welfare provision therefore the dismissals would be purported to be for the Applicants’ own benefit.

[367] Loretta Roos submitted that the common feature of s.104 and 105 is that the act is done with respect to either benefiting or promoting a group of people with an attribute. It was submitted that the act cannot be to benefit the group when the Applicants say they are Barada Barna. The only basis upon which the s.104 defence can be relied is to infer that the Applicants are not Barada Barna.

[368] It is submitted the evidence supports a conclusion that the Applicants were Barada Barna, and accordingly they are part of the group for whom the ADA is purported to promote equal opportunity or to benefit. The Respondent is therefore unable to take the benefit of either section. 379

[369] It was submitted for Bree Dargan that the Respondent had not come up to proof on the exceptions. It was said that it needs to be shown that the ADA was designed to benefit the group of people with a particular attribute and there was no evidence of that. 380

[370] It was submitted for Bree Dargan that the Respondent needs to show that the dismissal of the Applicants was a welfare measure or equal opportunity measure. The Respondent must prove that dismissing the individuals benefited the Barada Barna people or promoted equal opportunity for them, and the Respondent has not engaged with that requirement.

[371] The Respondent submits that the ADA renders lawful what would otherwise be unlawful in specific circumstances, and are commonly referred to as allowing reverse discrimination. The Respondent conceded it would not be usual to rely on the defences in sections 104 and 105 in a termination of employment. The Respondent could not point to any jurisprudence relying on the section related to termination of employment to assist me. 381

[372] The Respondent submits the policy of only employing Barada Barna falls squarely within s.104 of the ADA and is analogous to the Boys Town 382 policy of only employing females.

[373] Having accepted the submission that the actions of the employer under the ADA are largely determined objectively, and would require that the Commission objectively define the group, the Respondent’s defence must fail because it has never sought to objectively define the group as at the time of the decision on 11 August 2016. Its case has largely been run on the basis of the defence under s.351(2)(b), relying on establishing the subjective genuine belief of the decision maker.

[374] It is even accepted by the Respondent that the question of whether Kitchener Brown was or was not Barada Barna remains unclear, even with the benefit of all of the expert reports. 383 Even the decision of the formal member vote taken at the 29 April 2017 Special General meeting to remove the Kitchener Brown line from membership of the BBAC, does not settle the question on the basis of evidence. Because the evidence before the Commission does not rise any higher than a possibility that Kitchener Brown was not Barada Barna, the Respondent has been unable to define the group, or membership of the group and therefore cannot rely on either of the defences in s.104 or s.105 of the ADA.

Conclusion

[375] On 29 April 2017 the members of the BBAC decided by majority vote to cancel the membership of all descendants of Kitchener Brown. It was my impression in the course of the matter that the descendants of Kitchener Brown were looking for ways to challenge that decision but that is clearly not a matter for this Commission. It is impossible not be moved by the great sense of sadness accompanying the facts of this case that are a by-product of the Stolen Generation of which Kitchener Brown was a victim. It is difficult to even begin to imagine the extent of misery the public policy of that time has inflicted on past and now present generations.

[376] Mr Dwyer rightly acknowledged that fact when he submitted the following in closing;

“While I’m on it, the anthropological evidence is far from conclusive. Without divulging – because its stressed in our submissions, but without going into precise details, when you have regard to – and I’d urge you to do so – the precise details in full context of the anthropological reports that you have before you on this issue, there is at best a presumption that Kitchener Brown was the son of an apical. That I think, comes from Hilda Maclean. Then you have people like Lee Sackett who are saying he’s not a member. He’s not a blood relative; he’s not a member.

So there are varying anthropological and genealogical views about the matter and there is – and I say this with some level of sadness and regret for the Kitchener Brown lineage – no clear evidence either way, or in fact no clear evidence, I should say, that he has the appropriate connection to the apical ancestor.”

[377] For reasons set out above I have found in favour of the Applicants. In closing submissions the Respondent requested that in the event I find for the Applicants, it be given the opportunity to make further submissions on remedy for reasons including, amongst other things, a submission that it had identified errors in the calculations submitted by the Applicants. The Applicants opposed this course given that they had provided submissions on remedy.

[378] I am conscious of the requirement in the Act for the Commission to perform its functions as described in s.577, however have decided to direct the parties to confer with each other in order to seek to minimise any factual disputes between them over alleged errors in calculations, and then I will provide an opportunity to the parties to provide a further brief submission on remedy. I intend to list the matter for a Directions Hearing at 10am Thursday 28 June 2018.

COMMISSIONER

Appearances:

Mr K. Watson of Counsel instructed by Legal Aid Queensland appearing on behalf of Ms L. Roos and Mr A. Roos

Mr D. Fuller of Counsel instructed by Caxton Legal Centre appearing on behalf of Ms B. Dargan

Mr J. Dwyer of Counsel instructed by Franklin Athanasellis Cullen for the Respondent

Hearing details:

2017,

Brisbane:

November 27, 28 and 29

2018,

Brisbane:

April 6

Printed by authority of the Commonwealth Government Printer

<PR608216>

 1   [2017] FWC 3737.

 2   Transcript PN 214-217.

 3   PR598204.

 4   Transcript PN 53.

 5   Transcript PN 58 and Transcript 6 April 2108 PN 224.

 6   Statement of Loretta Roos, dated 22 September 2017. This statement annexed to it an earlier witness statement provided for the purposes of the interlocutory hearing regarding representation, and also an affidavit prepared for an interlocutory application to the Federal Court following an application to inspect the court file in Federal Court matter QUD 380 of 2008 concerning Native Title claims. Ms Roos also provided a reply statement dated 23 November 2017.

 7   Exhibit 3, Statement of Andrew Roos dated 22 September 2017; Exhibit 4, Reply Statement of Andrew Roos dated 23 November 2017.

 8   Exhibit 5, Statement of Gavin Brown dated 18 October 2017; Exhibit 6, Reply Statement of Gavin Brown dated 27 November 2017.

 9   Exhibit 7, Statement of Emma Kowal dated 23 November 2017.

 10   Exhibit 8, Statement of Bree Dargan dated 6 September 2017; Exhibit 9, Reply Statement of Bree Dargan dated 22 November 2017; Exhibit 10, Further Reply Statement of Bree Dargan dated 24 November 2017.

 11   Exhibit 18, Statement of Les Budby dated 21 November 2017.

 12   Transcript PN 322

 13   Outline of Submissions of Loretta Roos and Andrew Roos dated 22 September 2017.

 14   Reply Submissions of Loretta Roos and Andrew Roos dated 22 November 2017.

 15   Closing Submissions of Loretta Roos and Andrew Roos dated 24 January 2018

 16   Closing Submissions of Loretta Roos and Andrew Roos in Reply dated 23 March 2018.

 17   Outline of Submissions of Bree Dargan dated 6 September 2017.

 18   Reply Submissions of Bree Dargan dated 22 November 2017.

 19   Closing Submissions of Bree Dargan dated 25 January 2018.

 20   Closing Submissions of Bree Dargan in Reply dated 23 March 2018.

 21   Exhibit 11, Statement of Graham Budby dated 31 October 2017.

 22   Exhibit 13 Statement of Cecil Albert Brown Junior dated 1 November 2017; Exhibit 14, Further Statement of Cecil Albert Brown Junior dated 24 November 2017.

 23   Exhibit 16, Statement of Greg Brown dated 31 October 2017.

 24   Exhibit 17, Statement of Luarna Mitchell dated 31 October 2017.

 25   Exhibit 19, Statement of Jarrod Brown dated 19 October 2017.

 26   Exhibit 1 para 5.

 27   Exhibit 1 para 7.

 28   Exhibit 1 para 8 and 9.

 29   Exhibit 1 para 14.

 30   Exhibit 1 para 15.

 31   Exhibit 1 para 21.

 32   Exhibit 1 para 23.

 33   Exhibit 1 para 32, annexure LR 16.

 34   Exhibit 1 para 38.

 35   Exhibit 1 para 64 – 65.

 36   Exhibit 1 para 66.

 37   Exhibit 1 para 67.

 38   Exhibit 1 annexure 1 para 20-21.

 39   Exhibit 3 para 1.

 40   Exhibit 3 para 2 -5.

 41   Exhibit 3 para 19.

 42   Exhibit 8 para 2 – 6.

 43   Exhibit 8 para 10-12.

 44   Exhibit 8 para 16.

 45   Transcript PN 323.

 46   Transcript PN 332.

 47   Transcript PN 435-437.

 48   Transcript PN 334.

 49   Transcript PN 336-337.

 50   Transcript PN 339.

 51   Transcript PN 342.

 52   Transcript PN 462 – 464.

 53   Transcript PN 469.

 54   Exhibit 18 para 1-5.

 55   Exhibit 18 para 27.

 56   Exhibit 18 para 58-60.

 57   Exhibit 18 para 17.

 58   Exhibit 5 para 10.

 59   Exhibit 5 para 11.

 60   Exhibit 5 para 13.

 61   Exhibit 5 para 15-16.

 62   Exhibit 11 para 1-3.

 63   Exhibit 11 para 15 to 16.

 64   Transcript PN 566-576.

 65   Exhibit 11 para 17.

 66   Transcript PN 878-885.

 67   Exhibit 11 para 11.

 68   Exhibit 11 para 12 – 13.

 69   Exhibit 11 para 14.

 70   Transcript PN 542.

 71   Transcript PN 548.

 72   Transcript PN 549.

 73   Transcript PN 550.

 74   Exhibit 13 para 42.

 75   Exhibit 13 para 43.

 76   Exhibit 13 para 56.

 77   Transcript PN 1427-1443.

 78   Exhibit 13 para 84-85.

 79   Exhibit 13 annexure CAB01 para 7.

 80   Transcript PN 1365-1376.

 81   Transcript PN 1396-1397.

 82   Exhibit 13 para 9-10.

 83   Exhibit 13 para 11.

 84   Exhibit 16 para 1.

 85   Exhibit 16 para 4 annexure GSB03.

 86   Exhibit 16 para 10.

 87   Transcript PN 1822.

 88   Transcript PN 1642-1647.

 89   Exhibit 16 para 7.

 90   Exhibit 16 para 8.

 91   Exhibit 17 para 1-2.

 92   Exhibit 19 para 1-2.

 93   Exhibit 19 para 3.

 94   Exhibit 18 para 9-10.

 95   Exhibit 18 para 12.

 96   Exhibit 18 para 62.

 97   Exhibit 18 para 37-40.

 98   Exhibit 13 para 89-91.

 99   Exhibit 1 para 77-78 annexure LR 27.

 100   Exhibit 16 para 77-79.

 101   Exhibit 13 para 51-53.

 102   Exhibit 13 para 47.

 103   Exhibit 13 para 48-50.

 104   Transcript PN 1405-1420.

 105   Exhibit 16 para 42.

 106   Transcript PN 1836-1844.

 107   Exhibit 16 para 50 – 51.

 108   Transcript PN 366.

 109   Transcript PN 1612-1633.

 110   Exhibit 13 para 66 annexure CAB11.

 111   Exhibit 16 para 55 annexure GSB06.

 112   Exhibit 11 para 25 annexure GSB02.

 113   Exhibit 13 para 14 annexure CAB02.

 114   Exhibit 16 para 57-60.

 115   Exhibit 13 para 54 annexure CAB07.

 116   Exhibit 13 para 54-55.

 117   Exhibit 1 annexure 1 para 27-29.

 118   Exhibit 18 para 42.

 119   Exhibit 1 para 72.

 120   Transcript PN 1783-1793.

 121   Exhibit 16 para 106.

 122   Transcript PN 1810-1811.

 123   Exhibit 13 para 59 annexure CAB08.

 124   Exhibit 1 para 73 annexure LR 26.

 125   Exhibit 18 para 53-57.

 126   Transcript PN 2091-2128.

 127   Transcript PN 764-767.

 128   Exhibit 11 annexure GSB 1.

 129   Transcript PN 781.

 130   Exhibit 13 para 92-95.

 131   Exhibit 13 para 97.

 132   Transcript PN 1323.

 133   Transcript PN 1805 – 1808.

 134   Exhibit 19 para 4.

 135   Exhibit 1 LR 19.

 136   Exhibit 8 para 21.

 137   Exhibit 8 para 23.

 138   Exhibit 8 para 24

 139   Transcript PN 379.

 140   Exhibit 1 annexure LR 8.

 141   Exhibit 1 annexure LR 9.

 142   Exhibit 1 annexure LR 10.

 143   Exhibit 1 para 28.

 144   Exhibit 11 para 26.

 145   Exhibit 11 para 24.

 146   Exhibit 11 para 27.

 147   Exhibit 11 para 29.

 148   Exhibit 1 para 43-44.

 149   Exhibit 1 para 45-46.

 150   Exhibit 3 para 8 – 10.

 151   Exhibit 3 para 11 -12.

 152   Exhibit 3 para 6.

 153   Exhibit 8 para 25-26 annexures BD 1 and BD 2.

 154   Exhibit 18 para 19.

 155   Transcript PN 2022.

 156   Exhibit 18 para 22.

 157   Transcript PN 2033-2035.

 158   Exhibit 18 para 33.

 159   Transcript PN 473.

 160   Transcript PN 474.

 161   Exhibit 5 para 32.

 162   Exhibit 11 para 8.

 163   Exhibit 11 para 9-10.

 164   Transcript PN 536-537.

 165   Transcript PN 889.

 166   Exhibit 11 para 18.

 167   Transcript PN 585-590.

 168   Transcript PN 593-594.

 169   Transcript PN 595-603.

 170   Transcript PN 610-613.

 171   Transcript PN 616-627.

 172   Transcript PN 632-634.

 173   Transcript PN 636-652.

 174   Transcript PN 680-683.

 175   Transcript PN 2510-2517.

 176   Transcript PN 2585.

 177   Exhibit 20.

 178   Transcript PN 2600.

 179   Transcript PN 2638-2645.

 180   Exhibit 13 para 21-23.

 181   Exhibit 13 para 25.

 182   Exhibit 13 para 28.

 183   Exhibit 16 para 16.

 184   Exhibit 16 para 17.

 185   Exhibit 16 para 18.

 186   Exhibit 16 para 20.

 187   Transcript PN 1866-1867.

 188   Exhibit 17 para 9-10.

 189   Exhibit 19 para 6-7.

 190   Exhibit 13 para 61 annexure CAB09.

 191   Exhibit 13 para 62.

 192   Exhibit 16 para 54.

 193   Exhibit 13 para 29-31.

 194   Exhibit 13 para 69.

 195   Transcript PN 1241-1247.

 196   Exhibit 16 para 61-62 annexure GSB08.

 197   Exhibit 13 para 64 annexure CAB10.

 198   Exhibit 16 para 63-64.

 199   Transcript PN 369.

 200   Exhibit 16 para 66-67.

 201   Exhibit 16 para 68.

 202   Exhibit 18 para 44.

 203   Exhibit 13 para 73-78.

 204   Exhibit 16 para 69-72.

 205   Exhibit 18 para 14-15.

 206   Transcript PN 2045-2050.

 207   Transcript PN 391.

 208   Transcript PN 392.

 209   Transcript PN 358.

 210   Exhibit 19 para 12(d).

 211   Transcript PN 1450-1451.

 212   Transcript PN 1849.

 213   Exhibit 18 para 48-50.

 214   Exhibit 15.

 215   Transcript PN 444 – 450.

 216   Transcript PN 969-970.

 217   Transcript PN 1135.

 218   Transcript PN 1089-1094.

 219   Transcript PN 1097-1110.

 220   Transcript PN 1112.

 221   Transcript PN 1158-1160.

 222   Transcript PN 1165.

 223   Exhibit 16 annexure GSB02.

 224   Transcript PN 1655-166.3

 225   Exhibit 1 para 47-48.

 226   Exhibit 5 para 2-3.

 227   Exhibit 5 para 5 – 7.

 228   Exhibit 5 para 17.

 229   Exhibit 5 para 18.

 230   Exhibit 16 para 119.

 231   Exhibit 16 para 120.

 232   Transcript PN 343-344.

 233   Transcript PN 394-399.

 234   Transcript PN 400 -405.

 235   Exhibit 5 para 19-21.

 236   Exhibit 6 para 1-3.

 237   Exhibit 5 para 22 -25.

 238   Exhibit 5 para 36-37.

 239   Exhibit 5 para 41.

 240   Exhibit 5 para 43.

 241   Transcript PN 2157-2163.

 242   Exhibit 18 para 64-69.

 243   Exhibit 18 para 70-72.

 244   Exhibit 11 para 31.

 245   Exhibit 11 para 32 -35.

 246   Exhibit 11 para 36 (a) – (e).

 247   Exhibit 1 annexure LR 55.

 248   Transcript PN 696-720.

 249   Transcript PN 895.

 250   Exhibit 11 para 37-41.

 251   Transcript PN 784-791.

 252   Transcript PN 792-793.

 253   Transcript PN 900.

 254   Transcript PN 797-803.

 255   Transcript PN 804-806

 256   Exhibit 13 para 32-33.

 257   Exhibit 13 para 43 annexure CAB05.

 258   Exhibit 13 para 38.

 259   Exhibit 13 para 34-37.

 260   Transcript PN 979-980.

 261   Transcript PN 985.

 262   Transcript PN 992-994.

 263   Transcript PN 102-109.

 264   Transcript PN 1465.

 265   Exhibit 1 annexure LR 46.

 266   Transcript PN 1013-1022.

 267   Exhibit 13 para 100.

 268   Transcript PN 1259-1261.

 269   Transcript PN 1280.

 270   Transcript PN 1282-1290.

 271   Transcript PN 1292-1294.

 272   Transcript PN 1300-1305.

 273   Transcript PN 1462.

 274   Exhibit 16 para 24-25.

 275   Exhibit 16 para 26-29.

 276   Exhibit 16 para 32.

 277   Exhibit 16 para 121-123.

 278   Exhibit 16 para 33.

 279   Exhibit 16 para 81.

 280   Exhibit 19 para 8-19.

 281   Exhibit 19 para 12-13.

 282   Transcript PN 2485-2486.

 283   Transcript PN 2430-2435.

 284   Transcript PN 2489-2496.

 285   Exhibit 19 para 13.

 286   Transcript PN 2501.

 287   Exhibit 17 para 13.

 288   Exhibit 17 para 15.

 289   Exhibit 17 para 13-17.

 290   Exhibit 17 para 18-25.

 291   Exhibit 1 para 49-50.

 292   Exhibit 1 para 51-53.

 293   Exhibit 3 para 14.

 294   Exhibit 8 para 30-32.

 295   Exhibit 1 para 54.

 296   Exhibit 1 para 55.

 297   Exhibit 1 para 56.

 298   Exhibit 1 annexure LR 20.

 299   Exhibit annexures LR 21 and 22.

 300   Exhibit 1 annexure LR 23.

 301   Exhibit 8 para 34.

 302   Exhibit 8 para 35.

 303   Exhibit 16 para 81-83.

 304   Exhibit 5 para 46-47.

 305   Exhibit 5 para 34 -35.

 306   Exhibit 5 para 50.

 307   Exhibit 16 para 126.

 308   Exhibit 1 annexure LR 22 para 22-26.

 309   Exhibit 1 para 62 attachment LR 24.

 310   Exhibit 3 para 16.

 311   Exhibit 18 para 51-52.

 312   Transcript PN 423.

 313   Transcript PN 424.

 314   Transcript PN 427.

 315   Transcript PN 433.

 316   Exhibit 16 para 88-90.

 317   Exhibit 16 para 91 annexure GSB13.

 318   Exhibit 18 para 81 annexure LB 3.

 319   Transcript PN 2184-2190.

 320   Exhibit 2 para 77 annexure LR 26.

 321   Transcript PN 1702-1711.

 322   Exhibit 1 annexure LR 1 para 72-73.

 323   Exhibit 1 para 90.

 324   Exhibit 5 para 54-61.

 325   Exhibit 13 para 108.

 326   Exhibit 16 para 93-97.

 327   Exhibit 16 para 127.

 328   Shizas v Commissioner of Police [2017] FCA 61.

 329   Ibid at para 128.

 330   Outline of submissions of Bree Dargan 22 November 2017 para IV(A)4.

 331   Closing written submission of Respondent 2 March 2018 para 5 and 6.

 332   Written submissions in reply Bree Dargan 22 November 2017 para 11.

 333   (1979) 41 FLR 1, 19 (Smithers J).

 334   Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014, [121]; National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, [27], [29], [131; Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239 (Evatt J); General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, 611.

 335   Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 111.

 336   Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 2.

 337   Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 3.

 338   Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 11.

 339   Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 16.

 340   Transcript 6 April 2018 PN 38-46.

 341   Qantas Airways Limited v Christie (1998) 193 CLR 280.

 342   Qantas Airways Ltd v Christie (1998) 193 CLR 280, 295 [35] (Gaudron J, Brennan CJ, agreeing) 305 [74] (McHugh J), 318 [114] (Gummow J); X v Commonwealth (1999) 200 CLR 177, 187-188 [31], 191 [43] (McHugh J); 208 [102] (Gummow and Hayne JJ, Gleeson CJ agreeing).

 343   Qantas Airways Ltd v Christie (1998) 193 CLR 280, 308 [82] (McHugh J); Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513, 549 (Mansfield J).

 344   Qantas Airways Ltd v Christie (1998) 193 CLR 280, 284 [1] (Brennan CJ); X v Commonwealth (1999) 200 CLR 177, 208 [103] (Gummow and Hayne JJ).

 345   Qantas Airways Ltd v Christie (1998) 193 CLR 280, 284 [1] (Brennan CJ); X v Commonwealth (1999) 200 CLR 177, 189-190 [37] (McHugh J).

 346   Qantas Airways Ltd v Christie (1998) 193 CLR 280, 284 [1] (Brennan CJ).

 347   Qantas Airways Ltd v Christie (1998) 193 CLR 280, 310 [89] (McHugh J).

 348   X v Commonwealth (1999) 200 CLR 177, 208 [103] (McHugh J).

 349   Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 55.

 350   Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 66.

 351   Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 77.

 352   Outline of written submissions Winnaa 2017 para 30.

 353   Written submissions in reply Loretta & Andrew Roos 24 January 2018 para 23.

 354   Written submissions in reply Loretta & Andrew Roos 24 January 2018 para 39-40.

 355   Written submissions in reply Loretta & Andrew Roos 24 January 2018 para 46.

 356   Closing written submissions Winnaa 2 March 2018 para 29.

 357   [2008] QADT 32.

 358   Closing written submissions Bree Dargan 25 January 2018 para 62.

 359   Transcript 6 April 2018, PN 171-175.

 360   Closing written submissions Bree Dargan 25 January 2018 para 65.

 361   Closing written submissions Bree Dargan 25 January 2018 para 66.

 362   Transcript 6 April 2018, PN 124-125.

 363   Closing written submissions Winnaa 2 March 2018 para 32-35.

 364   Closing written submissions Bree Dargan 25 January 2018 para 70.

 365   Closing written submissions Winnaa 2 March 2018 para19.

 366   Transcript 6 April 2018, PN 221.

 367   Transcript PN 376.

 368   Walsh v St Vincent de Paul Society of Queensland (no.2) [2008] QADT 32 at 75.

 369   Voigtsberger v Council of the Shire of Pine Rivers (No.2) [1981] FCA 207.

 370   Transcript 6 April 2018, PN 187.

 371   Transcript 6 April 2018, PN 288.

 372   Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 37.

 373   Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 118-129.

 374   Written submissions in reply Loretta & Andrew Roos 23 March 2018 para 132-137.

 375   Transcript PN 1462.

 376   Transcript 6 April 2018, PN 77-78.

 377   Exhibit 13 annexure CAB06 para 50.

 378   Written submissions in reply Loretta & Andrew Roos 22 September 2017 para 37-38.

 379   Written submissions in reply Loretta & Andrew Roos 24 January 2018 para 75.

 380   Transcript 6 April 2018, PN 212.

 381   Transcript 6 April 2018, PN 318.

 382   Boys Town [2014] QCAT 247.

 383   Transcript PN 260 - 261.