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

Federal Court of Australia|1986-03-27|Before: Toohey JJ, Toohey J, Maurice J

Administrative law - Application for order of review and prerogative writs against Aboriginal Lands Commissioner - Objection to produce documents required by order under s.54 of Land Rights Act overruled by Commissioner.

Evidence ~ Public interest immunuity - Sacred Aboriginal information - Whether exempt from disclosure - Whether public interest immunity attaches to material obtained by or on behalf of Aboriginal Sacred Sites Protection Authority - Whether balancing exercise properly conducted - Factors to be considered.

Evidence - Confidentiality - Documents prepared by anthropologists - Whether a ground for non-disclosure.

Aboriginal Land Rights (Northern Territory) Act 1976, ss.50, 51, 54, 73(1).

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.

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

At a glance

Court

Decision date

Before

Source

Judgment (479 paragraphs)

Legislation Cited (1)

Cases Cited (2)