Aboriginal Sacred Sites Protection Authority v. Honourable M.D.A. Maurice, Aboriginal Land Commissioner & Ors [1986] FCA 85

Aboriginal Sacred Sites Act (N.T.) 1978, ss.3, 13, 24, 25, 26, 27, 28, 31, 32.

Administrative Decisions (Judicial Review) Act 1977, s.5. Judiciary Act 1903, s.39B.

THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY v. THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER & ORS.

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND CERTIORARI AGAINST THE HONQURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER & ORS. AND IN THE MATTER OF THE

WARUMUNGU_LAND CLAIM, EX PARTE ABORIGINAL SACRED SITES PROTECTION AUTHORITY

VICTORIA DISTRICT REGISTRY ) No. VG 237 of 1985 GENERAL DIVISION

BETWEEN: THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY

AND THE HONQURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER

THE ATTORNEY GENERAL FOR THE THE NORTHERN TERRITORY OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G336 of 1985 GENERAL DIVISION )

IN THE MATTER of an Application for a Writs of Prohibition and Certiorari against THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER

Third Respondent AND IN THE MATTER OF THE WARUMUNGU LAND CLAIM

EX PARTE: ABORIGINAL SACRED SITES PROTECTION AUTHORITY

JUDGES MAKING ORDER : Bowen C.J., Woodward and Toohey Ju.

The application for judicial review be dismissed.

The order nisi for writs of prohibition and certiorari be

The parties have liberty to apply on the question of costs

In the absence of any application there be no order as to

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG 237 of 1985 GENERAL DIVISTON

BETWEEN ; THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY

AND THE HONQURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER

THE ATTORNEY GENERAL FOR THE THE NORTHERN TERRITORY OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G336 of 1985 GENERAL DIVISION )

IN THE MATTER of an Application for Writs of Prohibition and Certiorari against THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSTONER

First Respondent THE CENTRAL LAND COUNCIL Second Respondent ROBERT BRUCE REYBURN Third Respondent

EX PARTE: ABORIGINAL SACRED SITES PROTECTION AUTHORITY

The facts and the relevant enactments are set forth in

In the course of hearing the Warumungu Land Claim under

the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

the Aboriginal Land Commissioner (Maurice J.) issued orders under 8.54 of that Act for the production of certain documents prepared by anthropologists and others in connection with a claim to have sacred sites in the general area of the land claim recorded in

the register kept by the Sacred Sites Authority under the Aboriginal Sacred Sites Act of the Northern Territory. The

orders were directed to individuals whom the Commissioner believed "to be capable of giving information relating to a

matter being inquired into by the Commissioner", namely, the Waramungu Land Claim.

Commissioner and resisted the production of documents prepared by its employees or persons under contract to it in connection with the application to have sacred sites recorded under the

Aboriginal Sacred Sites Act. The ground of its opposition was

that of public interest immunity. Stating the matter in a

summary way, it claimed that the information in question was gathered under a promise it would be kept confidential; that the Aboriginal custodians of the information were bound under Aboriginal law and custom to keep the information confidential; that production and disclosure in the Land Claim proceedings would cause dismay and resentment; that for the future the flow of information might reasonably be expected to be greatly reduced; and, the standing and working of the Sacred Sites Authority would be gravely prejudiced. a

Maurice J. held that there was insufficient basis for a Claim of public interest immunity, but that if he were wrong in that view, it would be necessary to balance the public interest in favour of non-disclosure against the public interest in favour of disclosure. He decided on balance in favour of disclosure indicating production would occur while he was sitting in camera; that only himself, his associate, counsel assisting, counsel for the Attorney-General of the Northern Territory, possibly his consultant anthropologist and the researcher who gathered the material would be present. They would not be permitted to use any of the information so learned for any purpose other than the land claim. He invited counsel to agree on appropriate protective measures and the mechanical arrangements for

The Sacred Sites Authority brought proceedings in this

Court under the Administrative Decisions (Judicial Review) Act

1977 and under s.39B of the Judiciary Act 1903 (see

Attorney-General for the Northern Territory v. Kearney (1984) 55 A.L.R. 545) challenging the decision of the Commissioner. The

Attorney-General for the Northern Territory was joined as a respondent. Also joined at various stages were the Central Land Council, a body established under the Land Rights Act, and Mr

R.B. Reyburn, one of the researchers who received a 3.54 notice.

The Central Land Council which was joined to represent the interests of the claimants before the Land Commissioner indicated its main concern was to have the land claim dealt with without further delay. It did not oppose the production and

disclosure of the material in question. Indeed, some of the

material had since been voluntarily disclosed. It appeared there was substantial overlap between those aboriginals who were claimants to the land and those who were custodians of the sacred sites information. Mr Reyburn supported the challenge made hy the Sacred Sites Authority to the decision of Maurice Jd. His counsel further argued that the Commissioner as a matter of discretion should have held that confidential material gathered

The principal questions raised are whether public interest immunity attaches to material obtained by or on hehalf

of the Sacred Sites Authority and, if so, whether on balance the

material in the present case should be produced and disclosed in

the land claim proceedings before the Commissioner.

This is an area of the law which has been developing in recent years. It is not so long since the Courts treated the certificate or affidavit of a Minister taking objection to

production on the ground it would be injurious to the public

interest as conclusive (Duncan v Cammell Laird & Co. (1942) A.C.

624). However, this decision was reviewed and not followed in

Conway v. Rimmer (1968) A.C. 910. It was there held it is a matter for the Court to decide whether the material should be produced. Documents are commonly referred to as qualifying for the immunity because they fall into a particular class such as cabinet papers or because of their contents such as defence or security documents. Some documents may answer both descriptions. On some topics such as the safety or security of the country the views of the Executive, which carries the responsibility, will be

given great weight; in such 'cases the balancing by the Court of

the public interest in favour of disclosure against the public interest in favour of confidentiality may be little more than a formality. In other cases the factors in favour of disclosure may be strong. For example, the possibility of establishing the innocence of an individual in a criminal case, weighs heavily. The smallness of the damage done to the public interest on the other hand may be significant, particularly where practical restrictions can be placed upon the extent of the public

It is to be noted that there is now no absolute right to insist on non-disclosure upon the ground of public interest immunity. Whether it be a case of a class objection or an objection on the ground of content, the objection is conditional

and depends upon the decision of the Court (Sankey v. Whitlam (1978) 142 C.L.R. 1 at p.38 and p.58).

Whether these rules apply to proceedings other than Court proceedings is not entirely clear. In the present case, it was common ground that they applied to proceedings before the Commissioner. I do not think any useful purpose would be served

The main difficulty in the present cases arises from the character of the claim for public interest immunity. The feature of confidentiality in relation to sacred sites involving Aboriginal law and custom is not likely to arise outside

With class documents such as cabinet minutes, minutes of discussion between heads of departments, papers brought into existence for the purpose of preparing a submission to cabinet and, indeed, documents which relate to the framing of government policy at a high level, there is not much difficulty (see Sankey v. Whitlam (1978) 142 C.L.R. 1 at p.39). These documents relate to government at a high level. The present case does not fall

into that category. On the other hand it must be said that

progressively in recent years governments have created statutory

bodies to perform functions of various kinds, which they could

have performed directly through an appropriate department of state. In this case if the Northern Territory Government had undertaken the functions of recording Aboriginal sacred sites by means of a department of state, the matter may have been regarded

As against this the fact that statutory bodies have been created in such vast profusion to perform various functions of government means a decision that such a body can claim public interest immunity may have wide ramifications. Nevertheless,

some decisions that public interest immunity may attach in such

cases have been given. See for example: Rogers v. Home

Secretary (1973) A.C. 388; A. Crompton Limited v. Customs & Excise Commissioners (No.2) (1974) A.C. 405; Dv. National

Society for the Prevention of Cruelty to Children (1978) A.C. 171i; Alister v. R. (1983) 50 A.L.R. 41.

It is not easy to isolate the factors which are of critical importance in deciding whether a particular case not at the higher levels of government attracts the immunity. Confidentiality of the material is not alone sufficient though it

may be of significance. (See Alfred Gompton Amusement Machines

Ltd. v. Customs & Excise Commissioners (No. 2) (1974) A.C. 405 at p.433; Science Research Council v. Nasse (1980) A.C. 1028 at p.1065; and, Sankey v. Whitlam (1978) 142 C.L.R. 1 at pp.42-43).

The fact that disclosure may dry up ai source of information is also of some significance. The protection of informers against disclosure has always been an important factor. Informers providing material to law enforcement officers have always been a recognized as being entitled to have their identity protected unless necessary to be disclosed in proving the

innocence of an accused person (Marks v. Beyfus (1890) 25 Q.B.D.

494. This has been extended to protection of informers supplying

material to the Gaming Hoard (Rogers v. Home Secretary (1973)

A.C. 388) and to an informer reporting child abuse to the National Society for the Prevention of Cruelty to Children (D v.

National Society for the Prevention of Cruelty to Children (1978)

A.C. 171). The reason for this rule regarding informers appears to have two bases, first, that disclosure would cause the flow of

information to dry up and, secondly, disclosure may place the

informer's health at risk. A second strand of reasoning in D's

Case (supra) lays stress upon the protective attitude of the

There is some suggestion that if the information is necessary for a statutory body to perform its functions whether

these involve prosecution of offenders or not, that informers

To perform its statutory functions the Sacred Sites Authority needs to be able to offer Aboriginal suppliers of

information the assurance that the information supplied

If breach of such assurances takes place it may reasonably be expected that the Aboriginal sources of information will

The Aboriginal custodians who supplied the information may

be held accountable by other Aboriginals if it be publicly

disclosed and may suffer some detriment as a consequence.

The Sacred Sites Authority has amongst its functions the

function of enforcing the Aboriginal Sacred Sites Act

({N.T.) (s8.13¢e)) and prosecution for an offence against this law may be made upon the complaint of the Authority (s.32). The particular information referred to in these

appeals was supplied to enable the Authority to discharge its function of recording sacred sites (s.13(b) and (c))

and was not supplied to facilitate prosecution for some

Aboriginals are people with whom the government has a

special relationship, with a protective element in it.

The question is whether the Authority is entitled to take objection to the production and disclosure of the material supplied by Aboriginals in confidence in relation to sacred sites upon the ground of public interest immunity. The categories of public interest are not closed (D's Case supra at p.230). But one should be cautious in extending heads of claim to withhold evidence required for the proper administration of justice. Certainly a willingness to extend established principles by analogy and legitimate extrapolation is an acceptable (D's Case

supra at p.226) although, I would think, not the only method of

In the result I have come to the conciusion that the Authority is entitled ta take objection on the ground of public

This, of course, does not mean it is necessarily entitled to have its objection upheld. But it does mean its objection should not be dismissed as being without foundation. It is entitied to have the detriment to the public interest involved in disclosure weighed in the balance against the

detriment to the public interest involved in non-disclosure.

The Commissioner, after reviewing the authorities, decided that the activities in relation to the Authority were not such as to attract the doctrine of public interest immunity.

However, he went on to consider the position assuming the public

interest in the performance by the Authority of its registration

function was sufficient to attract the doctrine of public

interest immunity. Upon balancing that interest against what he

considered to be other relevant considerations he stated he was still of the view that the records ought to be produced. I do

not consider any error was shown in his Honour's process of weighing the countervailing elements of public interest. I agree

with his conclusion that the records should be produced and disclosed in the restricted fashion set forth in his reasons for

It was argued by counsel for Mr Reyburn that as a matter

of discretion the Commissioner should have held that confidential material gathered by anthropologists did not have to be produced. However, in my opinion, no error was shown to have occurred in

the way in which Maurice J. dealt with this material.

One final matter should be mentioned. At the hearing before us an affidavit of Wenten Rubuntja sworn 9 January 1986

was tendered by counsel for the Authority. It dealt with the

likely reaction of Aboriginal custodians and others') shouid information imparted in confidence to the researchers engaged by the Authority be publicly disclosed. It was objected to by counsel for the Attorney- General of the Northern Territory, except as to an annexure consisting of a copy of a letter received by the Authority from one of its researchers, Jane Simpson. The affidavit was admitted subject to objection. I

consider we should now decline to uphoid the objection.

When a so-called "appeai" is from an executive tribunal, the hearing in the Federal Court is a hearing in its original

jurisdiction. In an application under the Judicial Review Act or

upon an application for a prerogative writ under s.39B of the

Judiciary Act the parties may produce such relevant evidence as they wish in support of their case. The evidence at the end of

the day may or may not be the same as that before the tribunal

whose decision is under "appeal" (see Ex parte Australian

Sporting Club Limited; Re Dash (1947) 47 S.R. (N.S.W.) 283;

Federal Commissioner of Taxation v. Lewis Berger & Sons (Aust. ) Limited (1927) 39 C.L.R. 468 at 469; Builder's Licensing Board

v. Sperway Constructions (Syd.) Pty. Limited (1976) 135 C.L.R.

evidence, there may be material which it has taken unto consideration in making its decision which would not be admissible in a court of law. The Federal Court may receive such material not in proof of the facts, with which it deals but as disclosing what material the tribunal had and considered in making its decision. Again the Federal Court will receive any fresh evidence relevant to the exercise of its discretion in

deciding what orders it should make (see Vangedai-Nielsen v.

Having admitted the affidavit of Wenten Rubuntja, I should mention that my opinion in this case would be the same

In the result, I am of opinion the application for review should be dismissed and the order nisi for writs of prohibition and certiorari should be discharged. The parties should be given the opportunity to argue the question of costs. In this regard they should have liberty to apply within 21 days,

| L certify that this and the 4wely @ (2) (va sare & true copy of the Rew ol nu.ein of his Honot

AND THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER

THE ATTORNEY GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA

IN THE MATTER of an Application for a Writs of Prohibition and Certiorari against THE HONOURABLE MICHAEL

First Respondent THE CENTRAL LAND COUNCIL Second Respondent ROBERT BRUCE REYBURN Third Respondent AND IN THE MATTER OF THE WARUMUNGU LAND CLAIM EX PARTE: ABORIGINAL SACRED SITES PROTECTION AUTHORITY

COURT: Bowen CJ, Woodward & Toohey JJ. DATE: 27 March 1986

These actions, along with two other related actions heard immediately afterwards, which are the subject of a separate judgment, raise interesting questions of privilege, covering public interest immunity (formerly known as Crown privilege) and legal professional privilege, as well as more general questions of

They all arise from a proceeding known as the Warumungu Land Claim ("the Land Claim"), which is before Maurice J, sitting as an Aboriginal Land Commissioner ("the Commissioner") pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"). The functions and powers of the Commissioner have been fully described in the draft judgment of

Toohey J, which I have had the advantage of reading, and I do not

Maurice J issued an order pursuant to s.54 of that Act for the production of a large number of documents, brought into existence or gathered, over a number of years, by anthropologists, linguists and others, which might tend to throw light on the validity of the claim. Some were created or collected specifically to assist the Aboriginal claimants in the formulation

of their claim. Others were due to the efforts of the Aboriginal Sacred Sites Protection Authority ("the Authority") to record

information about sacred sites in the area the subject of the claim and in immediately adjacent lands. (The role of the Authority is also described in some detail by Toohey J.) Others again represented work done by investigators arising from their

personal or professional interests in the people and the land

Before Maurice J, the Authority argued that the work of

its employees and contractors was protected by public interest immunity, and any balancing of conflicting public interests, called for by the application of that principle, should be

resolved in its favour. Those arguments were rejected by

Maurice J, and the Authority wishes to review that decision before this Court - either by application of the Administrative Decisions

(Judicial Review) Act 1977 ("the ADJR Act") or by way of a

prerogative writ for prohibition and certiorari, issued pursuant

The question of legal professional privilege, raised in actions by the Attorney-General of the Northern Territory, will be

particular anthropologist, Mr R.B. Reyburn, sought to persuade the

Court that, apart from the concepts of public interest immunity and legal professional privilege, there is a wider power which courts and tribunals should exercise to protect the confidentiality of field notes and similar documents prepared by anthropologists, based on the assurances of confidentiality normally given by anthropologists to their Aboriginal informants. It was said that much of the information given was of a secret and sacred nature, jealously preserved by the few Aboriginals entitled to know it and pass it on. Although joined as a respondent in all proceedings, Mr Reyburn did not seek to institute any proceedings of his own. His counsel was content to use his argument, as a second line of defence against disclosure, in supporting the Authority's case and resisting that of the Attorney-General for

In his approach to this topic, Maurice Jd began by identifying the public interest relied upon as lying in

"fostering a relationship between Aboriginal informants on the one hand, and the Authority and its agents on the other, in order to enable the Authority to effectively perform its functions."

"There are two main questions to which the claim of public interest immunity gives rise. Firstly, is an interest of the kind which the Authority seeks to protect within one of the recognised classes of public interest which this immunity exists to protect? Secondly, assuming it is, how ought I to exercise the discretion to which a claim properly made to such an immunity gives rise: in favour of the protection of sacred sites by the registration process or in favour of the pursuit of truth in the conduct of my inquiry?"

It is alleged by counsel for the Authority that his Honour erred in his formulation of the first of these questions by, in effect, placing too much emphasis on the need to fit the present case into an established category or class of public interest, or to identify a new category or class which could be

said to be analogous to or extrapolated from a recognized category

That he did adopt such an approach is clear from his Honour's ultimate finding on this aspect of the case, after he had

carefully canvassed the relevant authorities. He said,

"Whilst I can see that the public has an interest in the effective performance of the Authority's functions in this regard, I am quite unable to see any parallel between them and one of the categories of public interest recognised as attracting what was previously called Crown privilege. In other words, I cannot see how by analogy and legitimate extrapolation the limited classes of information

accorded this status may be expanded to accommodate what appears to me to be an altogether novel situation. In particular, because it was put to me as the closest analogy, I should say that I do not see even a loose comparison between the police providing confidential information to a gaming board about an application for a gambling licence (Rogers v Secretary of State (above) ) and Aboriginal persons seeking the protection of the Authority with respect to their sacred sites."

The recent authorities which Maurice J considered in detail in arriving at his conclusion were, in the United Kingdom, Rogers v Secretary of State for the Home Department £1973] AC 388; Dv National Society for the Prevention of Cruelty to Children €19781 AC 171; Science Research Council v Nasse £1980] AC 1028; and British Steel Corporation v Granada Television Ltd £19813 AC 1096. In Australia they were Sankey v Whitlam (1978) 142 CLR 1; and Alister v R (1983) 50 ALR 41.

A careful reader of these judgments will discern different degrees of emphasis put upon the importance of being able to place instances of alleged public interest immunity within an established category, or to find close analogy with such a category. The case for categories, if I may so describe the issue, is cogently put by Lord Hailsham in D v NSPCC (above, at p.225) when he contemplates courts at all levels trying to define and apply the public interest in unlimited single instances. However his Lordship went on to refer to his "willingness to extend established principles by analogy and legitimate extrapolation". And he concluded his judgment by saying,

these may be, must fall to be decided in the future. The categories of public interest are not

closed, and must alter from time to time whether by

restriction or extention as social conditions and at p.60) Stephen J (with "Relevant aspects of the public and static classes". After

referring to Lord Hailsham's judgment, his Honour went on to say,

"That case provides an illustration of the need to consider the particular nature of the proceedings in which the claim to Crown privilege arises in order to determine what are the relevant aspects of public interest which are to be weighed and what is to be the outcome of that weighing process."

"The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v

Rimmer [19681 AC 910 at p.940, as follows: 'There is the public interest that harm

shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shail not be frustrated by the withholding of documents which must be produced if justice is to be

done.' It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the

document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied

In my view, once it is accepted that the categories

claim based on the importance to Australian Aborigines of keeping certain sacred information closely guarded, merely because that type of information is unlike state secrets, the names of police informants or other established categories of immunity. That this is what Maurice J did is made clear by the extract from his judgment last quoted above. However helpful judicial warnings may be, references in decided cases to the desirability of limiting recognition of further categories of immunity cannot bind a Court which identifies a fresh category, different from those previously

In my opinion, the proper protection of minority rights is very much in the public interest, as is respect for deeply held spiritual beliefs. In particular, the rights and beliefs of the Aboriginal people of Australia should be accorded a special degree of protection and respect in Australian courts. Thus I can well imagine a court finding on balance, for example, that the outrage in an Aboriginal community caused by a forced disclosure of information about a sacred site, would outweigh the importance in that particular criminal or civil trial of precisely identifying the place or explaining why it was sacred. Such an approach would extend to cover both Aboriginal guardians of the secret and other persons to whom they had extended their confidence. In this connexion I see no great significance, in the present case, in the fact that the Authority is a statutory body. It is obviousiy far removed from the higher exercise of executive power which may give immunity to state papers. To my mind the same principles would apply if the Aboriginals had chosen to give secret and sacred

information in confidence to the employees of some private

foundation, dedicated to the preservation of Aboriginal oral

traditions, such as stories and songs of the dreamtime.

I believe, with respect, that Maurice J was in error in so far as he based his decision on this issue on the absence of an analogous category of public interest immunity. It is my opinion that, in this country, a fresh category of public interest immunity should be recognized, covering secret and sacred Aboriginal information and beliefs. Just who should be entitled to invoke such a category need not be decided in the present case. But, given the basic public interest to be served, and the valuable task which the Authority is performing, I think it is entitled to whatever protection it may gain from the shield of

However, that is not the end of the matter in this or

other cases. In the words of Stephen J quoted above, there is a need to consider the particular nature of the proceedings in which the claim arises "in order to determine what are the relevant aspects of public interest which are to be weighed and what is to be the outcome of that weighing process". In this case, Maurice J went on to consider how he would have exercised his discretion had

As his Honour pointed out, it would be anomalous if Aboriginals could rely upon the Aboriginal Sacred Sites Act (NT) ("the Sacred Sites Act") to provide protection for their sites and then refuse to allow sufficient revelation to enable persons

Similarly, since land claims pursuant to the Land Rights Act are intimately concerned with the verification of sacred sites, Aboriginal people must understand that when such claims are made, they have to be tested by inquiry, and this may involve recourse to materials prepared in aid of the formal recognition or

proclamation of sacred sites pursuant to the Sacred Sites Act. I

do not doubt that this would be understood and accepted by Aboriginal people, provided they knew that disclosure going beyond

the Authority itself would be kept to the necessary minimum.

In fact Maurice J has proposed to limit access to the restricted documents to himself, his associate, counsel assisting him, counsel for the Attorney-General, and possibly a_ consultant anthropologist. A limitation of this nature, with the further proposed restriction that any information gleaned be strictly confined in its use to the purposes of the Land Claim hearing, would go a long way towards reducing the strength of the public

On the other hand, as his Honour pointed out, there are substantial public interest arguments in favour of disclosure of materials which may serve to test the validity of claims. Many people would be affected, toa greater or less extent, by the granting of the substantial areas claimed - particularly the residents of Tennant Creek, local miners and graziers and their families, and commercial enterprises which have invested in the

area. The likely value to his inquiry of the materials the

subject of debate is very much a matter for his Honour, who will not want to encourage any delay. He concluded that the balance of

Although this exercise of the Commissioner's discretion was criticized by counsel for the Authority, they were not able to point, in my opinion, to any way in which the exercise has miscarried. His Honour saw himself as having a wide discretion. There was no important consideration omitted from his deliberations, and nothing wrongly taken into account, which could vitiate the exercise. The weight to be given to the various

For this reason I believe that, although his Honour misdirected himself in finding that he did not need to exercise a

discretion in this case, he has clearly indicated how he would

have carried out the weighing process referred to by Stephen J (above) had he thought it necessary, and it would be pointless to require him to do so again. Thus the challenge to his decision

Confidentiality of Communications to Anthropologists

Another question which this Court is called upon to deal with is the issue raised by counsel for Mr Reyburn, who put a "backstop" argument to those which were based in these actions on

public interest immunity and, in the related actions, on legal

professional privilege. In the event, I find it only necessary to deal with this argument to the extent that it suggests that

documents which have failed to achieve protection under the

heading of public interest immunity should nevertheless be treated

as privileged on general grounds of confidentiality.

The argument is based on authorities such as Science Research Council v Nasse (above), where at pp.1065-66 Lord Wilberforce conveniently summarized the law concerning respect for the confidentiality of documents which are not protected by public interest immunity or legal professional privilege. The two cases then before the House of Lords concerned the confidentiality of personal records of third parties in cases where discrimination in

promotion or appointment was claimed by an employee.

After finding in the first paragraph of his summary that public interest immunity did not apply, his Lordship continued as

"2. There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, in the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence ....

3. As a corollery to the above, it should be added that relevance alone, though a necessary ingredient, does not provide an automatic sufficient test for ordering discovery. The tribunal always has a discretion. ....

4. The ultimate test in discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentialty. But where the court is impressed with the need to preserve confidentiality in a particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence.

In order to reach a conclusion whether discovery is necessary notwithstanding

confidentiality the tribunal should inspect the documents. It will naturally consider whether justice can be done by special measures such as

"covering up", substituting anonymous references for specific names, or, in rare cases, hearing in camera.

The procedure by which this process is to be carried out 1s one for tribunals to work out in a

manner which will avoid delay and unnecessary applications. ...."

In my view this statement of principles, which was supported either expressly or implicitly by the other members of the House of Lords, is of assistance as a starting point in the present case. I would only add that the grounds for confidentiality seem to me to be stronger in the present case - there is more at stake. On the other hand it should be noted that some of those who might have been thought most anxious to have the confidentiality of their information protected are also those who

initiated the Land Claim and who stand to gain by it. They, through the Central Land Council, have informed the Court that

they are not arguing for confidentiality in these two actions because they regard a speedy conclusion of their Land Claim

All these considerations were, I believe, taken into account by Maurice J in the course of his long and careful judgment. The balancing exercise which he embarked upon, at the end of his consideration of public interest immunity, amounted to an exercise of his discretion in the difficult task of doing justice between the parties while giving proper weight to

His Honour carefully considered the judgments in Science Research Council v Nasse (above). He found that the case was not directly in point because it dealt essentially with discovery, while he was looking a step further ahead to the giving of effective evidence, which would be the subject of informed cross-examination, in a lengthy and complex inquiry. In the event, I am satisfied that there is nothing which his Honour contemplates which is inconsistent with the principles stated by Lord Wilberforce. Confidential material will be treated with respect and, in each case, its usage will be limited to the requirements of justice in the conduct of the Commissioner's

On a point of detail, I agree with the Chief Judge, for the reasons which he gives, that the affidavit of Wenten Rubentja

In the event, the application for review should be dismissed and the order nisi for a writ of mandamus discharged. The Court was requested to reserve questions of costs for further argument. As at present advised, I would make no order as_ to costs; but, in view of the request [I have referred to, I would reserve liberty to any party to apply to the Court on the subject of costs within 21 days. If any such application should be made, it would probably be convenient that it be dealt with on the basis

I hereby certify that the thirteen (13) preceding pages are a true and accurate copy of the

Reasons for Judgment herein of The Hon Mr Justice Woodward

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IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY

IN THE MATTER of an Application for Writs of Prohibition and Certiorari against THE HONOURABLE MISTER JUSTICE MICHAEL DAVID

EX PARTE ABORIGINAL SACRED SITES PROTECTION AUTHORITY

TOOHEY J. The Court has before it a number of questions arising from the hearing of the Warumungu Land Claim under the provisions

of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the

Lands Rights Act") by the Aboriginal Land Commissioner, Maurice J.

The questions concern notices issued by the Commissioner pursuant to s.54 of the Land Rights Act, calling upon various persons to produce material in their possession said to relate to the land claim. Those notices were issued at the instance of the Attorney-General for the Northern Territory of Australia who was a party to the land claim, representing the government of the Northern Territory. In particular notices were addressed to several anthropologists and linguists requiring the production of material prepared by them largely as a result of information provided by Aboriginal informants. Objection was taken to the production of much of the material the subject of the notices, on the grounds of public interest immunity, legal professional privilege and confidentiality. The Court is not concerned with the question of legal professional privilege in these applications. That matter arises in two other applications heard

immediately after these applications had concluded.

The Aboriginal Sacred Sites Protection Authority ("the

Authority"), a body constituted by the Aboriginal Sacred Sites Act of the Northern Territory ("the Sacred Sites Act"), was granted

leave to argue against the production to the Commissioner of such

material the subject of the notices as had come into existence in

Che course of work done by persons for the Authoritv, either as an

employee or pursuant to some contractual arrangement.

Before the Commissioner affidavits were tendered on

behalf of the recipients of the notices, witnesses were examined

and cross-examined and extensive argument was adduced both for and against the production of the material. Evidence and submissions extended over the period 16-25 July 1985. On 1 October 1985 the Commissioner announced his decision in respect of the issues before him and delivered lengthy reasons in support of the rulings he made. He rejected a submission that public interest immunity attached to the operations of the Authority. He held that even if public interest immunity did attach, "the balance of public interest tilts in favour of disclosure". His rulings have been

In so far as the material required to be produced emanated from work done at the instigation of the Authority, the Authority itself argued that the material was privileged from production under a head of public interest immunity. It also attacked the Commissioner's approach to balancing aspects of public interest. Mr. Reyburn, one of those who received a s.54 notice and who described himself as a cross-cultural consultant, appeared by counsel to support the Authority's claim for public interest immunity but contended as well that the Commissioner had erred in failing to balance correctly the various considerations arqued in support of and in opposition to the production of the documents prepared by him. The Attorney-General resisted the

arguments of the Authority and of Mr. Reyburn. The Central Land

Council, a body established by the Land Ridghts Act, appeared to represent the interests of Aboriginal claimants before the

There are two applications with which these reasons for

judgment are concerned. One is under the provisions of the

Administrative Decisions (Judicial Review) Act 1977 and the other

is made pursuant to s.39B of the Judiciary Act 1903. The Authority is the applicant in each case and in truth the Attorney-General is the respondent though other parties have been joined. In the light of the experience reflected in

Attorney-General (N.T.) v. Kearney (1984) 55 A.L.R. 545, the

Authority has, by way of caution, proceeded under both the

Counsel for the Authority took as their starting point the question whether the notion of public interest immunity extended to the operations of the Authority itself, in particular to material obtained by the Authority from Aboriginal informants in order to consider whether a site should be registered or declared. Although the matter was argued very much by reference to information imparted to anthropologists employed by or engaged by the Authority, the question arises, however information is

While the existence or non-existence of public interest immunity lies at the heart of the issues concerning the Authority, I do not think it is the starting point for an inquiry by the

Court. The starting point must be the functions and powers of the

Aboriginal Land Commissioner for 1t may be that in those functions and powers lies a clue as to whether the notion of public interest immunity has any application to an inquiry under the Land Rights

Section 50 of the Land Rights Act confers on the Commissioner a number of functions. His primary function (and that with which the Court 1S presently concerned) is, on application being made by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land (being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals) to ascertain whether those or any other Aboriginals are the traditional Aboriginal owners of the land. He must report his findings to the Minister for Aboriginal Affairs and the Administrator of the Northern Territory and, where he finds that there are traditional Aboriginal owners, he may make recommendations to the Minister for the granting of the land or

The powers of the Commissioner are cast in the widest terms; s.51 provides that he "may do all things necessary or convenient to be done for or in connexion with the performance of his functions". Clearly the Commissioner may not act in an

arbitrary manner and, generally speaking, he must act according to

the principles of natural justice as they exist in regard to

The Commissioner s functions are essentially unquisitorial for he 1s required by the Act to inquire and report. However, in conducting an inquiry the Commissioner mav find it appropriate from time to time to adopt adversarial procedures,

particularly where it 1s apparent that aarant of land to

traditional owners may affect the interests of adjoining landholders or townspeople, the existing or likely future plans of qovernment or public utilities or the interests of miners. This is not to say that an adversarial approach is always appropriate or 1s the norm. While, in the ordinary run, material gathered by the Commissioner in the course of his inquiry will be presented through interested parties. there may be occasions when the Commissioner will find 1t necessary to obtain information on his own initiative. Paragraph 50(1)(a) of the Land Rights Act obliges the Commissioner to ascertain whether the Aboriginal claimants or any other Aboriginals are the traditional Aboriginal owners of the land claimed. In either case questions will arise as to the extent to which material should be made available to all those participating in the inquiry. As a qeneral rule the dictates of natural justice require that material be made available to all participating. But there may be situations, in particular where evidence concerns matters of a secret sacred nature to Aboriqinals, in which the Commissioner is jiustified in placing

These are matters for the judament of the Commissioner. That is not to say that his exercise of judgment 1s not susceptible of review, whether under the Judicial Review Act or by

means of s.39B of the Judiciary Act. But 1t is to point up the

broad discretion which the Land Rights Act confers upon the Commissioner in the course of an inquiry. However it was not suggested by any counsel that public interest immunity has no place under the Land Rights Act and we were told that the arqument proceeded before the Commissioner on the basis that the doctrine

While the principal attack on the issue of notices by the Commissioner was made by the Authority, one should not lose sight of the fact that the notices were not issued to the Authority but to individual persons, in particular anthropologists. Section 54 of the Land Rights Act empowers the Commissioner, by notice in writing, to require a person "whom he believes to be capable of giving information relating to a matter being inquired into by the Commissioner in carrying out his functions under this Act, being a matter specified in the notice, to attend before him ... and to produce to the Commissioner such documents and other records in relation to that matter as are

It is the Commissioner 's belief that is the justification for the issue of a notice. It was not part of the Authority's case that the notices themselves were invalid because the Commissioner was not justified in believing that the persons the subject of the notices were capable of giving relevant information. Nevertheless counsel for the Authority did submit

that the Commissioner issued the notices on the mere assertion of

counsel for the Attorney-General that the recipients of the

notices had information which might prove relevant. Having regard

to the way in which the applications are framed and the submissions of counsel, the Court is not called upon to determine whether the Commissioner had justification for the issue of the notices. But, 1f the notion of public interest immunity exists in the case of the operations of the Authority, the Commissioner is still required to weigh the public interest against disclosure against the public interest in favour of production. This isa balancing exercise which the Commissioner must conduct. It may be that once particular documents are produced, the Commissioner will decide that they are not capable of assisting the inquiry and

The Sacred Sites Act has been described as complementary or reciprocal legislation. It was enacted pursuant to sub-s.73(1) of the Land Rights Act which extended the power of the Legislative Assembly of the Northern Territory under the Northern Territory

(Self-Government) Act 1978 in relation to the making of laws to

"(a) laws providing for the protection of, and the prevention of the desecration of, sacred sites in the Northern Territory ...".

The Authority is a body corporate, consisting of a chairman and eleven other members, all of whom except the Director are appointed by the Administrator of the Northern Territory. The

functions of the Authority are spelt out in s.13 of the Act and it

(a) to establish and maintain a register of sacred sites;

(b) to examine and evaluate all claims for sacred sites made to it by Aboriginals;

(c) to record sacred sites, with full details of the significance to the traditional Aboriginals, including any story, of each sacred site and any relevant factors including custodianship of the sacred site;

(d) to recommend to the Administrator that particular sacred sites be declared protected sites under this Act;

(£) to carry out such other functions relating to the protection of sacred sites as the Administrator

may, by notice in the Gazette, authorise the Authority to carry out."

Part III of the Act is concerned with the Register of Aboriginal Sacred Sites in which the Authority is obliged to "record all sites which the Authority accepts as sacred sites".

"a site that is sacred to Aboriginals or is otherwise of

significance according to Aboriginal tradition, and includes any land that, under this Act, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition".

Thus the legal status of sacred site is not dependent upon action by the Authority; indeed the offence created by s.31 of entering or remaining on a sacred site does not require that the site be registered or even under consideration by the Authority. The Authority is required by s.25 to examine and evaluate a site referred to 1t by an Aboriginal as a sacred site.

If satisfied, the Authority records the site and all its

particulars in the register. Sub-section 24(2) requires that the record of a sacred site made in the register shall, "in so far as it is possible", state the boundaries of the sacred site area, the name or names of the custodian or custodians with addresses, the

story of the site according to Aboriginal tradition and any other

matters concerning the site as the Authority thinks relevant. However, access to the register is at the discretion of the

In practice, as appears from the affidavit of Robert William Ellis, the Director of the Authority, access to the register is strictly limited. The register, in which are kept all records of sacred sites and any relevant material, is housed ina locked room with keys available only to the Director, the Registrar of Sacred Sites and the Senior Technical Officer. An anthropologist employed by the Authority may be permitted access to the register during working hours to check notes but always under the supervision of the Registrar. No-one may copy any material in the register other than the Registrar himself. In Mr. Ellis' words "The material in the Register is regarded as highly

confidential". The reason for confidentiality is summarised in

" il. The Authority has, since its inception and in the day to day operation of its work, assured and guaranteed custodians of sacred sites and Aboriginal traditional owners strict confidentiality in respect of all materials lodged in the Register and given a verbal undertaking that any request by any person to view or obtain a copy of the material will be subject to the terms of any agreement which may be given by the custodians. The Authority will not release any anformation whatsoever from the Register without first consulting the appropriate custodian and obtaining his or her express approval. There is an exception to this

practice. namely, the Authority will provide maps showing the boundaries of areas accepted bv the

Authority as sacred sites where a person has a hona fide interest in the area 1n question".

As to this last statement, the Authority's report for

the year ended 30 June 1982 contains the following comment:

consulted by mineral explorers and other developers and is proving a useful aid in the orderly development of the Territory's economy. It is anticipated that as people become more aware of the Authority's ability to assist in this matter, that greater use will be made of the register by developers and planners in the Northern Territory".

It is, I think, helpful to include another paragraph

" 12. If the Authority were to disclose material from the Register without the prior express approval of the custodians, the Authority anticipates that the confidence of custodians and Aboriginal persons generally will be severely eroded to the point that it compromises its function. Also, the Authority anticipates that bodies upon whose good offices the Authority relies would withdraw much of the ready support it has enjoyed since the Authority started. The esteem with which the Authority is held by professional researchers would be greatly impaired. The fundamental principle upon which the work of the Authority is predicated is that it can and will guarantee confidentiality of all information provided to it. If it becomes known to Aboriginal people that material obtained by the Authority in the discharge of its functions had by whatever means been provided to another person otherwise than in accordance with the principles and procedures outlined above, trust in the Authority would be undermined; it would be much less able to discharge its statutory functions and would run the substantial risk of losing the support of custodians and Aboriginal people. Aboriginal members of the Authority have expressed to me the fear that if the Authority were to act in a manner not in accordance with the above principles and procedures, they personally would face traditional sanctions associated

with the improper distribution of restricted information".

In para. 13 of his affidavit, Mr. Ellis stated the willinaness ot the Authority to receive a request from the Commissioner to obtain copies of reports prepared for the

Authority in the area of the Warumungu Land Claim. In his words:

"Upon receipt of such a request the Authority would undertake to consult with custodians and authors as to that material which might, in the discretion of the Authority, be properly released. The terms of any such release could then be worked out as between the Commissioner and the Authority acting on the advice of the custodians".

The Central Land Council, representing the Aboriginal claimants before the Commissioner, took a different approach to that of the Authority. The Council wished to maintain the right of the Authority to preserve confidentiality in the material it received. Nevertheless, in the circumstances now existing, the Council did not seek to maintain a principle of public interest immunity attaching to the Authority. The Council invited the Court to dispose of the applications before it without reaching any conclusion as to the application of public interest immunity in regard to the Authority. The Court should, the argument ran, dispose of the applications on the basis that even if such immunity existed, the Commissioner had correctly exercised his discretion in requiring the recipients of s.54 notices to produce the documents specified in those notices and in imposing

limitations on the distribution of those documents.

The basis of the Council's approach was that alreadv much time had been lost and expense incurred in connection with the Warumunaqu Land Claim. It was of the areatest importance to the Aboriginal claimants that the hearing of their claim be resumed and disposed of as soon as possible. Already there have been grants of mining rights in respect of the claim area and other governmental activities in relation to the land which, the Council submitted, constitute a continuing disadvantage in the event that a recommendation is made for a grant of land to them. In the Council's submission, there was no need in the circumstances of the present case to withhold any of the documents, the subject of the notices, from production. It had not been shown that production of any of the documents was likely to bring about adverse consequences for Aboriginals or that the

production of such documents would impair the operations of the

The Council was at pains to stress that the claimants had taken a pragmatic view of the situation and had concluded that, in the circumstances, it was preferable that the documents be produced without any further delay so that the hearing might resume. The claimants were content with the restrictions attached by the Commissioner to the distribution of the documents the subject of the notices and, in all the circumstances, accepted any risks associated with the production of that material including its effect on the Authority, rather than delay the hearing of the land claim any further. The concept of traditional owners under the Lands Rights Act does not necessarily equate that of

custodians under the Sacred Sites Act. While that may have some

practical implications, I do not think it affects the issues

The Council stressed that, while the jurisdiction of this Court under the Judicial Review Act was not challenged, it should be recognized that the decisions the subject of the application were decisions of a procedural nature made during the course of the Commissioner's hearing. They were in the nature of interlocutory decisions, not final decisions. It followed that, in any event, the Court should be slow to interfere with the progress of the land claim, particularly as the Commissioner had before hima considerable amount of oral and written evidence which placed him in a particularly advantageous position to assess the relevance and impact of the material sought to be produced and the appropriateness of restrictions to be attached to its distribution. The Court, it was said, lacked many of the

As a starting point for a consideration of the relevant judicial decisions, it may be accepted that it is in the interests of the Authority that it be able to preserve confidentiality in respect of information furnished directly or indirectly by Aboriginal informants, particularly information of a secret sacred nature. That much emerges with sufficient clarity from the

affidavit of Mr. Ellis. Material is entrusted to the Authority in

the confidence that it will not be made available to others without reference to the informant. That is not to say that all information provided to the Authority possesses characteristics

requiring confidentiality. But, in order not to undermine the

conlLidence ceposed in the Authority by Aboriginals. the Authority has adopted the practice ot not disclosina intormation without

There appears to be, underlying the Commissioner's approach to the question of public interest immunity, the notion that the Authority and Aboriainal informants in some way seek to place themselves beyond the reach of judicial or quasi judicial

process. Referring to the Sacred Sites Act, his Honour said:

"If Aboriginal people want the protection of this legislation - and I do appreciate that this may involve

them in a difficult choice - then they must be prepared to come forward and reveal sufficient about their sites to bring themselves within its umbrella. And, in my opinion, aiven the extent of protection afforded by the Act to such sites, it is not tenable that Aboriginal people may do this for the purpose of enabling the Authority to do what, in effect, may amount to holding

in terrorem persons who have a legitimate interest in the area claimed to be a_ site, without being prepared to extend the range of disclosure beyond the members

and staff of the Authoritv in appropriate situations".

With respect, I do not think this is the way in which the Sacred Sites Act or the working of the Authority should be approached. The Act, as its name indicates, is for the protection of sacred sites. The Act imposes an obligation on the Authority, in the circumstances mentioned, to reqister a sacred site. It empowers but does not oblige the Authority to take steps to have a sacred site so declared bv the Administrator. The declaration of a sacred site is necessarily attendant with publicity, for the Administrator must cause an investiaation to be carried out (5.26) and the notice in the Gazette, declaring an area to be a sacred

site. must include amap indicating an area that contains the

Sacred site or andicate where such a map may be inspected (s,27). Where a sacred site is so declared. 5.28 provides various steps that may be taken for the protection of that site. It appears fhat durina its existence the Authority has not sought to have anv sacred site so declared. the reason beina that the publicity necessarily attendant on such a step has made Aboridinals

reluctant to initiate requests to the Authority to do so.

Where a sacred site is reqistered but not declared, no

consequences follow automatically. By reason of s.34 of the Act, a certificate under the common seal of the Authority or the hand of its director certifying that an area of land is recorded in the register as a sacred site "shall be accepted as proof that it is recorded as a sacred site by the Authority, by all courts, judges and persons acting judicially without further proof being

required". Presumably the section means what it says viz. that a certificate is proof of recording. It is not proof that there is a sacred site within the definition of that term in s.3 for, in the absence of a declaration. it must be shown that a site is "sacred to Aboriginals or is otherwise of significance according

What then is the point of recording a site in the Register but taking no step to have the site declared? In part it 1s because recording reflects an evaluation by the Authority, and the material reflected in the evaluation is available as evidence if the Authority wishes to control access to a sacred site or

decides to prosecute for an offence. In part it lies in s.31(7)

of the Act. section 31 makes 1 an offence to enter or remain on a sacred site. Sub-section tos makes it a defence "if the person charged proves that he had no reasonable grounds tor suspecting that the land concerned was a sacred site". By reason of sub-s.1(7). such a defence cannot be established unless the

"(b) he had taken all reasonable steps to ascertain the location and extent of the sacred sites on any part

of that Aboriginat land likely to be visited by hin",

An obvious step to take would be to enquire of the Registrar

whether in the land proposed to be visited a sacred site existed.

Thus the operations of the Authority may have little direct impact on the general population of the Northern Territory where no declaration has been made. The Act itself seeks to protect sacred sites and, incidentally thereto, the Authority becomes a repository of a areat deal of material. To accord public interest immunity to the Authority is not to place it beyond the law. It is to ensure that, before documents in its possession are produced to a court or tribunal, the court or tribunal considers whether the public interest to be served in protecting the document from disclosure is outweighed by the broader public interest in ensuring that all relevant information 1s made available to it. However the question whether the concept of public interest immunity attaches to the operations of the Authority remains to be decided. And while there is much qood sense in the approach taken by the Central Land Council, I do not think that the Court can avoid coming to arips with the

It is apparent that confidentiality alone 1s insufficient to establish public interest immunity. McGuinness v.

Attorney-General (1940) 63 C.L.R. 73 at pp.102-103; Dv. National

Society for Prevention of Cruelty to Children (19783 A.C. 171 at pp.230, 237-239; Science Research Council v. Nasse C1980 A.C.

1028 at pp.1065, 1074, 1080. In McGuinness at p.102 Dixon J.

stated the position as to privilege in these terms:

"Except in a few relations where paramount considerations of general policy appeared to require that there should be a special privilege, such as husband and wife, attorney and client, communications between jurors, the counsels of the Crown and State secrets, and, by statute, physician and patient and priest and penitent, an inflexible rule was established that no obligation of honour, no duties of non-disclosure arising from the nature of a pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box".

McGuinness dealt with the question whether privilege attached to the editor of a newspaper who declined to answer questions at a Royal Commission regarding the source of statements

in his newspaper touching the subject matter of the inquiry. In

the light of later decisions, it is doubtful that the rule can be stated in such absolute terms, unless within the exceptions noted by Dixon J. may be included certain information coming into the possession of statutory bodies not accurately described as government departments or organs of central government. In this

Prevention of Cruelty to Children and information received by the

Society about the treatment of a fourteen month old girl. The information resulted in a visit by an inspector of the Society to the home of the parents of the child. The mother of the child later brouqht action aqainst the Society for damages for personal injuries alleged to have resulted from the Society's negligence in failing properly to investigate the complaint and the manner and circumstances of the inspector's call which, she said, had caused her severe and continuing shock. The Society defended the action and applied for an order that there should be no discovery or inspection of any documents which revealed or might reveal the identity of the informant. The basis of the application was that the proper performance by the Society of its duties under its charter and the relevant statute required that absolute confidentiality of information given in confidence should be preserved, that if disclosure were ordered the Society's sources of information would dry up and that that would be contrary to the public interest. The Society also claimed that disclosure of the informant's identity was not necessary for disposing fairly of the

Master Jacob ordered that the relevant documents be disclosed. On appeal by the Society, Croom-Johnson J. reversed the Master's order. On appeal by the mother, the Court of Appeal restored the order. Qn further appeal by the Society, the House of Lords unanimously allowed the appeal though the reasoning that

led each of their Lordships to that conclusion was not identical.

Lord Diplock took what was described in argument as the

"IT would extend to those who qive information about neglect or ill-treatment of children to a local authority or the N.S.P.C.C. a similar immunity from disclosure of their identity in legal proceedings to

He thought it unwise to base a decision on the "broad" approach

"wherever a party to legal proceedings claims that there is a public interest to be served by withholding documents or information from dislosure in those proceedings, 1t is the duty of the court to weigh that interest against the countervailing public interest in the administration of justice in the particular case and to refuse disclosure if the balance tilts that way".

Lord Hailsham was aqainst "a general extension in range of the nature of the exceptions to the rule in favour of disclosure" (at p.224) but he found "equally unattractive the more restricted and even, occasionally, pedantic view of the authorities advanced on behalf of the respondent", (at p.226). He expressed "a willingness to extend established principles by analogy and legitimate extrapolation more flexible than was admitted by the respondent" (at p.226). In his Lordship's view, an extension of the protection given to informants to the police to information relating to possible child abuse supplied to the Society was a legitimate extension of a known category of

Lord Simon spoke of "a continuum of relevant evidence which may be excluded from forensic scrutiny" (at p.233). He too

thought that "a narrow rather than a wide ground of decision would

be desirable in the instant case, if the former is available" (at

p.235). He was prepared to extend, by analogy, the protection

Lord Kilbrandon agreed with Lord Hailsham, saying that he would allow the appeal "on what has been termed the narrow

Lord Edmund-Davies enunciated the principle in rather

"(II) But where (i) a confidential relationship exists (other than that of lawyer and client) and (ii) disclosure would be in breach of some ethical or social value involving the public interest, the court has a discretion to uphold a refusal to disclose relevant evidence provided it considers that, on balance, the public interest would be better served by excluding such evidence.

(III) In conducting the necessary balancing operation

between competing aspects of public interest, the presence (or absence) of involvement of the central government in the matter of disclosure is not conclusive either way, though in practice it may affect the cogency of the arqument against disclosure."

He thought that the view of Croom-Johnson J. that the public interest in protecting the Society's sources of information overrode the public interest that the mother should obtain the information she was seeking in order to obtain legal redress had

The ratio decidendi of D. v. N.S.P.C.C. may, I think, be expressed this way. There is no legal principle that protects

documents from production or information from disclosure merely

because thev are given in confidence. The cateqories aiving rise

to aummunity are not closed but they mav only be extended by analouv and leaitimate extrapolation. Information about child abuse, provided to organizations concerned with protection of children, talls within the concept of public interest immunity as

a leqitimate extension oft the immunity already qiven to informants

to the wolice. See also Rogers v. Home Secretary €19733 A.C. 388.

If the "narrow" approach be applied to the present Situation. the resuit would be that the only public interest

immunity attaching to the Authority is in the case of infcrmation provided to enable it to prosecute for an offence under the Act.

That would not assist the Authority in the present case.

Even though in 0D. v. N.S.P.C.C. most of their Lordships

preferred the narrow approach, a wider view was taken by the High

Court in Sankey v. Whitlam (1978) 142 C.0.R. 1. The case related

to privileaqe from production of cabinet documents and papers concerned with policy decisions at a high level. Thus it was concerned with Crown privilege in the traditional sense of that term. Nevertheless views were expressed bv the members of the High Court that have application to a wider range of documents

than those with which the decision was directly concerned.

Gibbs A.C.J. dealt with the matter under the heading

"Evidence Excluded as Preyudicial to the Public Interest ('Crown Privilege')". He began his discussion of the relevant principles

"The General tule is that the court wall not order the production of a document. although relevant and

otherwise admissible, 1f 21t would be injurious to the public interest to disclose it".

His Honour then emphasised that it is the dutv of the court to decide whether a document will be produced or mav be withheld, an exercise that requires the court to determine which aspect of the public interest predominates - "whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant

"An objection may be made to the production of a document because 1t would be against the public

belongs toa class of documents which in the public interest ought not to be produced, whether or not it

would be harmful to disclose the contents of the particular document".

"Speaking generaliy, such a claim will be upheld only if it is really necessary for the proper functioning of the public service to withhold documents of that class from production".

His Honour went on to consider documents that had been

held to fall within that class. For the most part they are cabinet minutes, minutes of discussions between heads of

department and documents which relate to the framing of government

poiicy at a high level. While recoanizinag that there is a class

of documents entitled to protection from disclosure irrespective

of their contents. Gibbs A.C.d. described this protection as

"not absolute, and it does not endure forever. The fundamental and aoverning principle is that documents in the class may be withheld from production onlv when this 18 mecessarvy in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice" (at p.43).

As TI read his Honour's analysis, a document mav be entitled to protection from production because it falls intoa particular class but the court may find it necessary to decide whether, in all the circumstances, the protection should endure.

Where a document does not fall within one of these recognized classes, the court may nevertheless decide that both aspects of

Stephen J. referred to competing interests in this way

"Because disclosure to the world at large of some information concerning sensitive areas of government and administration may prejudice the national interest there exists a public interest in preventing the curial process from being made the means of any such disclosure. At the same time the proper administration of iustice, of prime importance in the national interest, requires that evidence necessary if justice

1s to be done should be freely available to those who litigate in our courts".

documents relating to a high level of qovernment decision-making

have been spoken of "as pre-eminently one for the application of the privilege" (at p.57), I understand his Honour to put' the

balancing process at the forefront, as 1t were, of the question of protection from production. His Honour went on to say "Relevant aspects of the public interest are not confined to strict and static classes" (at p.60). In that context he referred to D. v.

"their Lordships discerned an aspect of the public interest, hitherto unremarked and which was quite unconnected with the affairs of central government but which was nevertheless proper to weigh in the balance and which in the outcome sufficed to outweigh that other public interest which exists in there being

available to the court the information necessary for it to do justice between litigants".

His Honour said that those "who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy

Mason J. said that while it has generally been assumed that important state documents relating to high level policy

"It is now recognized that in considering an objection to production on the ground of Crown privilege the court must evaluate the respective public interests and determine whether on balance the public interest which calls for non-disclosure outweighs the public interest in the administration of justice that requires that the parties be qiven a fair trial on all the relevant and material evidence" (at pp.95-96).

"Cabinet tlecision and cabinet papers do nor. stand outside the qéeneral rule Chet requires Ehe court to determine whether on balance the public interest calls

for production or non-production, Thev stand fairlv and squarely within the area of application of that cule",

Because of the view he took of the matter. Jacobs J. did

Aickin J. agreed generally with Stephen J., emphasising

that "there is no categorv or class simply of documents which

D. v. N.S.P.C.C. and Sankey v. Whitlam take somewhat

different approaches but at least in part that is explicable by the different factual situations involved. Iam not persuaded that public interest immunity attaches to the operations of the Authority so as to entitle it to withhold the production of any document from a court or tribunal having a leaitimate interest in the contents of that document. (It need hardly be said that if documents are covered by immunitv on the around of public interest. not only may they be withheld but they must be

withheld.) The reasons why I am not persuaded are as follows.

There is no general principle that documents may be withheld from a court or tribunal because they came into the possession of the person holding them on a confidential basis. If there is a general principle, it 1s that the administration of justice requires the full disclosure of all relevant evidence for fairly disposing of proceedings, The categories of public

interest 1mmunity are not closed: but they are not open without

restriction. The replacement of the expression "Crown privilege" with that of "public interest immunity" (a change regretted by Lord Scarman in Nasse) should not disquise the fact that in general terms "the immunity exists to protect from disclosure only information the secrecy of which is essential to the proper workings of the government of the state" (Lord Scarman in Nasse at p.1087). That is not to say that immunity is confined to departments or organs of central government; it may exist in the case of statutory bodies. But, as Lord Scarman pointed out in Nasse at p.1087, "We are in the realm of public law, not private right". Immunity was extended in D. v. N.S.P.C.C. because the position of the N.S.P.C.C. in the enforcement process was comparable with that of other law enforcement bodies. Sankey v.

Whitlam placed much emphasis on the relationship between the

public interest and the proper functioning of government.

In Gurry's Breach of Confidence at p.347 the matter is

" In a number of cases the courts have held that the confidentiality of communications will be preserved

where an extrinsically established public interest can

only be vindicated if those communications have immunity from forensic investigation".

As the author notes, this is much the language of Lord Simon in D. v. N.S.P.C.C. at p.239. The Sacred Sites Act exists to protect a legitimate concern of Aboriginal people in the Northern Territory that their sites be protected from intrusion and desecration. Whether that is a public interest in the sense

presently being canvassed may be debated though it is no answer to

the claim of public interest simply to sav that Aboriginals represent onlv a portion (albeit a substantial portion) of the Territory population. The protection of sacred sites is a matter that bears on the orderlv qovernment of the Territory and has legislative warrant in both the Land Rights Act and the Sacred

Sites Act. But IT am not persuaded that such public interest as exists can only be vindicated if communications with the Authority

have a general immunity from forensic investigation.

While the Authority understandably treats as confidential information gathered by it relating to sites, the

time must necessarily come when information will have to be disclosed in order to establish the existence of a sacred site, whether it be for the purpose of a prosecution or asa step towards declaration under the Act. And the Authority readily makes available to those with a bona fide interest maps showing the boundaries of areas accepted by the Authority as sacred sites. It 1s not possible, in my view, to conclude in some overall fashion that the Authority can operate only if the information it

Now it is not a corollary of rejecting the concept of

public interest immunity in the case of the Authority that any documents in its possession or in the possession of others for its purposes must necessarily be disclosed to the public at large or even to all those participating in the proceedings of a court or tribunal. To begin with, a document must be relevant to an issue being litigated and its production must be required to enable the

proceedings to be disposed of fairly. It is apparent froma

number of decisions that a court or tribunal has a discretion as to how much 1t will make public and what conditions 1t will attach to the production of documents and the disclosure of information.

/ As Lord Wilberforce pointed out in Nasse at p.1066:

preserve confidentialty ina particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence. vee It will naturally consider whether justice can be done by special measures such as 'covering up' substituting anonymous references for specific mames, or, in rare cases, hearing 1n camera".

The Commissioner ordered the production of some only of the documents the subject of the 5.54 notices and he indicated his intention to restrict production to a limited number of persons participating in the inquiry, under strict conditions as to the publication of material directed to be produced. In the course of

"But the most important consideration of allis the protective measures which I propose to adopt. The production of the records sought will occur whilst I am sitting in camera. Only myself, my associate, counsel assisting, counsel for the Attorney-General, possibly my consultant anthropologist and the researcher who

gathered the material will be present. They will not be permitted to use any of the information so learned for any purpose other than the land claim".

It would seem that the Commissioner has not yet given precise directions as to the circumstances in which the documents

are to be produced. At the close of his reasons he said:

"I have indicated that I am prepared to take strict protective measures to preserve the confidentiality of

these records and to ensure that the information contained in them 1s used only for the purposes of this inquiry. The precise nature of those measures and the restrictions to be placed upon the inspection and use of confidential materials is something I will discuss further with counsel when the hearing resumes - if they are not able to agree upon them between themselves in the meantime.

I will consider sympathetically any request to conduct the inquiry in camera if and when the questioning touches upon secret sacred, private or confidential matters.

Whilst I have indicated that I will supervise the inspection process, in my opinion that ought not be necessary. Counsel should now be able to agree upon the appropriate protective measures and the mechanical arrangements for inspection, without my intercession,

and arrange for that to take place before the hearing resumes".

Presumably no precise directions have been given by the Commissioner because the applications made to this Court have brought the hearing of the land claim to a halt. It is apparent that there are two quite distinct steps involved if documents are produced in response to the s.54 notices. The first is the production of the documents themselves to the Commissioner and a decision by him as to the circumstances in which they will be made

available to those participating in the inquiry. The second

concerns the use that may be made of any of the material so produced, It may be, for instance, that counsel for the Attorney-General will wish to cross-examine a witness by reference to material produced, whether or not the witness is the author of any of that material. It is clear that the Commissioner is alive to the problems that may arise when each of these steps is taken. The resolution of those problems is essentially a matter for the

To relect the proposition that public interest 1zmmunity attaches to all documents in the possession of the Authority and to all documents that came into existence at its instiqation is not to say that in the case of a particular document there may not be an aspect of public interest immunity which a court or tribunal must balance against the public interest in favour of disclosure. In effect the Commissioner took this approach by going on to consider where the balance lay, had public interest immunity been properly invoked. His conclusion was "I would still say that the balance of public interest tilts in favour of disclosure". This

conclusion was attacked both by the Authority and Mr. Reyburn.

The Attorney-General submitted that the balancing process carried out by the Commissioner was an exercise of discretion that could not be challenged by prerogative proceedings or under the Judicial Review Act. Counsel referred to Gronow v. Gronow (1980) 144 C.L.R. 513 where the High Court stressed that, before an appellate court reverses a decision of a trial judge founded upon the exercise of a judicial discretion, it must be satisfied he was plainly wrong so that his decision was no exercise of his discretion. The fact that the judge gives excessive weight to some factors is not of itself a basis for an appellate court to substitute its discretion for that of the

"Discretion" may not be the most appropriate description for the evaluative process the Commissioner performed. Furthermore, the constraints placed on appellate courts by

decisions such as Gronow v. Gronow must be read against the

particular criteria spelled cut ain s.5 of the Judicial Review Act

Nevertheless I am not persuaded that, in any relevant sense, the Commissioner erred in his conclusion that the balance of public interest tilted in favour of disclosure. The Commissioner appreciated the importance of confidentiality to the Operations of the Authority and the effect that public disclosure of material, at least of certain material, might have upon Aboriginals. Against these considerations he took into account that the matter before him was a land claim initiated by Aboriginals claiming to be the traditional owners of the land in question. The documents the subject of the s.54 notices were thought to have a bearing on questions of traditional ownership that the Commissioner was called upon to determine. The land claim has implications, not only for the claimants but for a wide range of persons in and around Tennant Creek; those persons have an interest in seeing that all material relevant to questions of traditional ownership and other matters which the Commissioner is

required to take into account are placed before the inquiry.

The obligation which the Act imposes upon the Commissioner to ascertain whether the claimants or any other Aboriginals are the traditional owners of the land claimed gives the inquiry a character different to that of conventional court proceedings. While, in practical terms, the issues may be defined by those participating in the inquiry, the statutory obligation

Counsel for Mr. Revburn submitted that information of a confidential nature aqathered by him from Aboriginals or made available to him should not be required to be disclosed. The point was said to arise both as a form of professional priviledge relating to anthropologists (in which respect it has no relevance to these applications) and also as an aspect of the public

The relationship between anthropologists and Aboriginal informants was considered by the Commissioner at some length. I am not to be taken as agreeing with everything said by the Commissioner on this matter; but I am not persuaded that, in approaching the balance of public interest immunity and wider aspects of the public interest, the Commissioner erred. This is not the place to attempt some definitive assessment of the legal implications where anthropologists are possessed of information acquired from Aboriginals in some relationship of confidence. Indeed it is doubtful if there could ever be a definitive assessment for the matter must turn very much upon the circumstances in which information is acquired, the purpose for which it is required to be disclosed and any restrictions imposed upon that disclosure. In the present case it must be remembered that the Central Land Council, speaking for the claimants, submitted that none of the documents ordered to be produced had been shown to involve the adverse consequences adverted to by the Authority. Furthermore, the Council acknowledged that, on such evidence as there was and on such instructions as it had been able to obtain, the claimants wished the documents produced so that the

Overlvying all these considerations are the protective measures which the Commissioner proposes to adopt. There is an exercise of discrection involved in determinina the range of persons to whom the produced documents should be made available and the circumstances in which the contents of those documents may be the subject of cross-examination or of an independent inquiry by the Commissioner himself. These are decisions of a procedural nature with which the Court should be slow to interfere. Adam P.

Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. (1981) 148

C.L.R. 170 at p.177. That 1s not to say that anv decision the

Commissioner makes in this reqard 1s beyond challenge.

The Court 1s presently concerned with the decision of the Commissioner that documents must be produced to him and that they are not the subject of public interest immunity because of their connection with the operations of the Authority. That decision has not been shown to be wrong. If it was wrong, it has not been shown that the Commissioner erred in his weighing of competing areas of public interest and in his alternative

conclusion that the balance was in favour of disclosure.

In my view the application for judicial review should be dismissed and the order nisi for writs of prohibition and certiorari should be discharged. I would add that, in relation to the admissibility of the affidavit of Wenten Rubentjia, I have read the reasons for judament of the Chief Judge and aqree that the

objection to admissibility should not be upheld. Like the Chief

Judge, my conclusions do not depend upon the reception ot the

The parties should have liberty to apply on the question of costs within 21 davs: in the absence of anv application there

I certify that this and the preceding thirty-four pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Toohey.