Jango v Northern Territory of Australia

NORTHERN TERRITORY DISTRICT REGISTRY DG 6023 OF 1998

REASONS FOR JUDGMENT 1 I am hearing an application pursuant to ss 50(2) and 61(1) of the Native Title Act 1993 (Cth) ("NTA") for a determination of compensation. The application relates to all land within the town of Yulara, the boundaries of the town having been established by proclamation in the Australian Government Gazette on 10 August 1976. The applicants accept that native title rights and interests in the land have been extinguished, but say that they are entitled to compensation pursuant to the provisions of the NTA. 2 The hearing commenced at Yulara on 21 October 2003. The case for the applicants has been opened. The applicants have read a number of affidavits from Aboriginal witnesses. The respondents have requested, in accordance with directions previously made, that sections of the evidence in chief be given orally. Several witnesses have given their oral evidence in chief. Except for one witness, there has as yet been no cross-examination.

THE MOTION 3 By an amended notice of motion filed in Court on 27 October 2003, the applicants seek orders in relation to the giving of "male gender restricted evidence" and "female gender restricted evidence". Up to date no evidence answering this description has been given. However, according to the "Annotated Hearing Schedule and Planning Notes" dated 28 October 2003 ("Hearing Schedule") prepared by the applicants, three days have been set aside next week (on 3-5 November 2003) for the hearing of gender restricted evidence at sites in and near Yulara. There is some urgency about resolving the issues raised by the motion, since it is desirable to establish the ground rules before the gender restricted evidence is taken. 4 The motion was heard on the afternoon of Thursday, 30 October 2003. Counsel for the first respondent ("the Territory") indicated at the outset that agreement had been reached with the applicants as to the appropriate form of orders. The third respondent ("the Commonwealth"), however, was not party to any agreement and disputed the orders sought by the applicant. (The second respondent is not playing an active role in these proceedings.)

the ORDERS SOUGHT 5 The motion defines the expression "male gender restricted evidence" to mean "such information relating to Aboriginal law and custom as may be identified, recorded in written form or given in oral evidence which may not be disseminated to: (b) women; (c) uninitiated men; (d) non Aboriginal men; or (e) children." 6 The orders that are sought in relation to male gender restricted evidence are as follows: "3. The following people only may be present at the hearing when any male gender restricted evidence is given as oral evidence or may read any male gender restricted evidence or any transcript thereof: (a) any male party; (b) any male expert engaged by a party for the purpose of providing advice about such matters; (c) any male counsel, male solicitor or necessary male staff of a party; and (d) the Judge and those male staff as directed by the Judge. 4. Male gender restricted evidence must not be divulged to any person not present at the hearing other than: (a) male parties; (b) male experts engaged by a party for the purpose of providing advice about such matters; (c) male counsel, male solicitors or necessary male staff of a party; and (d) a Judge and those male staff of a Judge as directed by the Judge. 5. Male gender restricted evidence: (a) shall be recorded and transcribed by a man; (b) shall, along with any audio and computer records of the evidence, be kept separate from the general transcript and shall be printed on coloured paper; (c) shall have a covering sheet marked: "'Gender Restricted Evidence - This transcript records evidence and submissions in relation to matters of Aboriginal law and custom which by Order of the Court must not be viewed by any person other than: (i) any male party; (ii) any male expert engaged by a party for the purpose of providing advice about such matters; (iii) any male counsel, male solicitor or necessary male staff of a party; and (iv) the Judge and those male staff as directed by the Judge.'" 7 In addition, the orders contemplate that male gender restricted evidence "may be given orally" in the Court room and at the following sites: "Warayuki (a cave at the north end of Uluru, east of the Mala walk) at various locations on a track that travels east from Kata Tjurta into the Yulara township block and at a location north-east of the outstation known as Ampiyararra where restricted men's tjukurrpa travels." 8 The definition of "female gender restricted evidence" is the counterpart to the definition of "male gender restricted evidence". The applicants seek equivalent orders to those set out above for the protection of such evidence. 9 The proposed orders provide that at the conclusion of the proceedings all gender restricted transcript or other records of such transcript should be delivered up by the parties for destruction. 10 The motion identifies certain written material, including sections of anthropological reports, as being within the categories of male or female gender restricted evidence (as the case may be). None of this material is yet in evidence. The applicants and the Commonwealth have agreed that it is not necessary at this stage of the hearing to make any orders in respect of that material, which for the present is the subject of undertakings by the Commonwealth.

11 The motion also proposes orders in relation to "gender sensitive evidence", defined to mean: "information relating to Aboriginal law and custom as may be identified, recorded in written form or given in oral evidence which may not normally be discussed in mixed gender Aboriginal groups". In the course of argument, it became clear that the category of "gender sensitive evidence" was not intended to include male gender restricted evidence or female gender restricted evidence. Once again, there was agreement between the applicants and the Commonwealth that there was no need to address the orders appropriate to "gender sensitive evidence", since none of the evidence to be adduced on 3-5 November 2003 is likely to fall within that category.

The Proposed GENDER RESTRICTED Evidence 12 At a directions hearing held on 7 August 2003, I made an order that on or before 12 September 2003, the applicants file descriptive statements of any restricted evidence to be led on site during the first tranche of hearings. Unfortunately, the applicants have not complied with that direction. Accordingly, the only information presently available as to the nature of the evidence to be called on site is that contained in the Hearing Schedule. 13 According to the Hearing Schedule, some of the evidence to be given is unrestricted - that is, the applicants do not suggest that it is either gender restricted evidence or gender sensitive evidence. There is no issue that the respondents' legal representatives are entitled to be present when the unrestricted evidence is given and that there should be no restrictions on access to the transcript of that evidence. 14 The gender restricted evidence to be given on site is described as follows: Monday 3 November 2003 Location: Mantarurr Nellie ARMUNTA, Nellie PATTERSON and Dora Haggie WALKABOUT will give female gender restricted evidence about the Kungka Kutjarra Tjukurrpa and how its path of travel connects Mantarurr with the Yulara block. A part of the Kungka Kutjarra Tjukurrpa will be re-enacted within the Mantarurr complex. Nellie ARMUNTA, Nellie PATTERSON and Dora Haggie WALKABOUT will give female gender restricted evidence at the sacred site Manguri about other aspects of the Kungka Kutjarra Tjukurrpa. Location: Site near Ngaanatjarra College Descriptive Statement of Evidence: Female gender restricted inma to be performed. This inma is a part of the Kungka Kutjarra Tjukurrpa narrative which connects the female applicants to the Yulara Township block. Tuesday, 4 November 2003 Location: Sacred sites between Kata Tjurta and Ampiyarra Descriptive Statement of Evidence: Men's gender restricted evidence of the connection of the Yulara Township block to a wider area owned by the applicants will be given at the following site locations: · 52 J 0680817, 7203377. Evidence will address the spiritual link between Kata Tjurta sites further East to be visited immediately afterwards in the direction of Yulara. Evidence will be led in the vicinity of the site ID 716 in Appendix 7.5 (Restricted). We then travel a short distance to a waterhole; · 52 J 0683917, 7205017 (Yulara Kurku Waterhole). This is Site ID 1639 in Appendix 7.5 (Restricted). Evidence will be led from claimants about the rock hole and its spiritual significance linking Kata Tjurta with the claim area. · 52 J 0690147, 7204539 (Yulara Purlka Waterhole). [Male gender restricted evidence] will be led from the claimants about the rock hole and its spiritual significance linking Kata Tjurta with the claim area. Location: Yulara Purlka Outstation and Waterhole Descriptive Statement of Evidence: Evidence of the connection of the Yulara Township block to a wider area owned by the applicants. Evidence of the establishment and occupation of the outstation…. There will also be evidence regarding the persons buried nearby. Location: Point on a men's Tjukurrpa track within the claim area just past Ampiyarra Descriptive Statement of Evidence: Male gender restricted evidence of the connection of the Yulara Township block to a wider area owned by the applicants. At the following location: · 52 J 0695371, 7215879. Reggie Uluru will explain the reasons for the closure of the track leading into the area. Wednesday, 5 November Location: Katartitja sacred site within Connellan airport 2003 boundary within the Yulara Township. Descriptive Statement of Evidence: Female gender restricted evidence is to be given by Nellie ARMUNTA and Nellie PATTERSON about the Kungka Kutjarra Tjukurrpa that passes through that sacred site. Dora Haggie WALKABOUT will re-enact parts of the Kungka Kutjarra Tjukurrpa as it travels through the site. The evidence will show the connection between the Yulara Township block and surrounding land. Location: Uluru (Warayuki) Descriptive Statement of Evidence: Male gender restricted evidence of the connection of the Yulara Township block to a wider area owned by the applicants. The men will gather at the road and be lead into the site. An explanation of its importance will be given in the cave. After leaving the cave evidence will be lead at a site nearby regarding piercing of the nasal septum. The evidence will be given by the above named men. [The Hearing Schedule nominates seven men, subject to their availability on the day.]

Agreement Between the Applicants and the Territory 15 Counsel for the Territory announced at the start of the hearing of the motion that it accepted that the orders sought by the applicants in relation to the evidence to be taken on 3-5 November 2003 were appropriate, subject to the implementation of an agreed "Protocol for Reports of Evidence at Gender Restricted Sites" ("the Protocol"). The Protocol is in the following terms: "DRAFT PROTOCOL FOR REPORTS OF EVIDENCE AT GENDER RESTRICTED SITES The following information be recorded in a document for unrestricted use in the proceedings:

1. who was present;
2. the order of entry;
3. whether there was a ritual approach;
4. the roles adopted by the participants at the site: 4.1 lead/dominant; and 4.2 other; 5. the fact that something was shown (if it was) with such details as are appropriate (eg Nellie Patterson Witness Statement Para 2, 6, 10, 14, 15, 19 and 20); 6. the fact that something was danced (if it was) with such details as are appropriate; 7. the fact that something was sung (if it was) with such details as are appropriate; 8. the fact that a story was told (if it was) with such details as are appropriate; 9. the name of the Tjukurrpa associated with the site/ceremony; 10. the place/places the ceremony is associated with (if any); 11. the track the ceremony is associated with (if any); 12. the designs/body painting that are used during the ceremony (if any); 13. any information given by the participants at the ceremony about how they learned the ceremony and to whom they have passed it; and 14. any explanation given by the participants as to the importance of the site/ritual to them." (The references to paragraphs in Nellie Patterson's witness statement are to her unrestricted descriptions of certain ceremonies or practices relating to the Kungka Kutjarra Tjukurrpa.) 16 It appears that the Territory proposed that a protocol on the above lines should be adopted. The final form of the Protocol was settled after discussions between the Territory and the applicants. It is interesting to note that in Wandarang, Alawa, Marra & Ngalakan Peoples v Northern Territory of Australia (2000) 104 FCR 380 Olney J directed that females should be excluded when evidence appropriate only to males was given and imposed restrictions on the preparation of and access to the transcript. His Honour noted (at 385-386) that "[t]he obvious difficulties that such a procedure gives rise to in a case in which the legal advisers of all the parties included both males and females were adequately overcome by the parties agreeing to the tendering of a statement as to the general thrust of the evidence which did not disclose any gender-specific information."

THE LEGISLATION 17 The source of the Court's power to make the orders sought by the applicants is ss 17 and 50 of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"). These provisions are as follows: "17(1)Except where, as authorized by this section or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court. … (4) The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or of those persons, as the case may be, would be contrary to the interests of justice. … 50. The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth." 18 Section 82 of the NTA is important. It is as follows: "(1) The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders. (2) In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings." 19 The current s 82 was introduced into the NTA by the Native Title Amendment Act 1998 (Cth) ("NTAA"). Its predecessor, which was replaced by the NTAA, was in the following terms: "(1) The Federal Court must pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt. (2) The Court, in conducting proceedings, must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders. (3) The Court, in conducting proceedings, is not bound by technicalities, legal forms or rules of evidence." 20 There are important points of difference between the two provisions. They include the following: (i) The repealed s 82 provided that the Court, in conducting proceedings, was not bound by the rules of evidence. By contrast, the Court is now bound by the rules of evidence, except to the extent it otherwise orders. (ii) The repealed s 82(2) required the Court to take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders. The current provision states that the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders. (iii) The repealed s 82 imposed no express restriction on the Court's duty to take account of indigenous cultural and customary concerns, although the exercise of powers conferred by ss 17(4) and 50 of the Federal Court Act is dependent on the Court being satisfied of the matters specified in those provisions. The current provision precludes the Court from taking account of indigenous cultural and customary concerns if to do so would "prejudice unduly any other party to the proceedings". It is important to bear these differences in mind when considering the approach taken in cases conducted under the repealed statutory regime.

THE EVIDENCE 21 The applicants read a number of affidavits, without objection, in support of the motion. The affidavits were made by: · Dr Jon Willis, a consultant anthropologist who has been initiated into Pitjantjatjara-Yankunytjatjara restricted men's ceremonial law; · Petronella Vaarzon-Morel, also a consultant anthropologist; · A third anthropologist, Dr Peter Sutton; · Nellie Patterson, an Arnangu (Aboriginal) witness who has given oral evidence in the substantive hearing; and · Barbara Tjikartu, also an Arnangu witness who has given oral evidence at the substantive hearing. None of the deponents was cross-examined. 22 Mr Hughston SC, who appeared with Dr Perry for the Commonwealth, accepted that I could take into account, on the hearing of the motion, the responses of the Arnangu witnesses when, in their evidence in chief, they were asked questions touching on women's secret knowledge or men's secret knowledge. 23 It is not necessary to recount all of the affidavit evidence, although of course I have had regard to the evidence of each of the witnesses. It is useful, however, to refer to the evidence given by Dr Willis, Nellie Patterson and Barbara Tjikartu, since their evidence is of particular importance to the applicants' case that the orders specified in the motion should be made to prevent dissemination of the gender restricted material. 24 Dr Willis gave evidence that among Pitjantjatjara and Yankunytjatjara people a complex system of restrictions applies to the dissemination of certain types of knowledge of which gender restrictions play a key part. Dr Willis explained the position in relation to information about the Tjukurrpa (which is often, although not entirely accurately, referred to as Dreaming) as follows: "Restrictions on information form a core part of Pitjantjatjara/ Yankunytjatjara culture, and the divisions in these restrictions (gender, ceremonial status and age) mirror key divisions in the social organisation of the Pitjantjatjara/Yankunytjatjara. All Pitjantjatjara/Yankunytjatjara men, almost without exception, submit to initiation as a way to accessing adult status associated with knowing restricted information. Both men and women accept restrictions on knowledge, and express a very strong commitment to their maintenance. Pitjantjatjara/Yankunytjatjara cosmological beliefs are based on the maintenance of Tjukurrpa/Waparr, particularly through the management of sites and knowledge associated with the activities of ancestral beings. In this way, maintaining information restrictions has a direct bearing, in Pitjantjatjara/Yankunytjatjara belief, on the ongoing existence of the universe." 25 Dr Willis expressed the opinion that the proposed restrictions are necessary because of the likelihood of a range of sanctions being applied in various ways for providing inappropriate access to gender restricted material, including transcript of restricted evidence. He said that he had personally witnessed a range of sanctions applied to men who committed minor breaches of restricted men's law and knew of cases where breaches of law had resulted in death. Dr Willis also expressed the view that if appropriate restrictions were not in place, the applicants would be likely not to proceed with the restricted evidence. He noted that, for the most part, Pitjantjatjara and Yankunytjatjara people do not make permanent records of restricted knowledge. However, Arnangu men are aware that information can be recorded and he had been warned when attending restricted men's ceremonies that he was not to record his experience. 26 Dr Willis said that in his experience Yankunytjatjara and Pitjantjatjara people, to a limited extent and in particular circumstances, are prepared to exercise "some flexibility in the application of cultural restrictions on knowledge". For example, the male applicants had accepted that they would have to reveal some aspects of restricted men's law to uninitiated male lawyers and anthropologists and to make this knowledge available, albeit in a restricted way, to the Court. Dr Willis attributed the flexibility to three factors:

• there is an ambiguity in the Pitjantjatjara and Yankunytjatjara social system in relation to uninitiated adult men and there are no clear provisions for dealing with mature men who are not Wati (initiated men);
• the Arnangu are prepared to recognise that training in anthropology or the law has some "functional equivalence" to training in men's ceremonial law; and
• the flexibility is confined to serious purposes such as the protection of sacred sites or to secure title to country. 27 Nellie Patterson (who has given her evidence in chief in the substantive proceedings) said that she knows the Tjukurrpa for the Mantarurr area, through the Kungka Kutjarra (Two Women) Dreaming. She said that there is an "inside story" for women that cannot be spoken about to men, on pain of "big trouble". According to Mrs Patterson, men are not permitted to see any of the miirl-miirlpa (dangerous) Tjukurrpa. If a man sees that he might get sick and die, while women seeing men's business might be speared or made sick. Mrs Patterson said that if a woman told a man the inside story for Kungka Kutjarra, she would get into trouble and could be flogged. Other Arnangu women would be very angry with her. 28 While the women had agreed that they could tell the Judge a little bit of the Kungka Kutjarra, they were not prepared to recount the whole story. The women could not tell the male lawyers what they were prepared to tell the Judge. Since the Judge "is strong and important" he will be able to see how important minyma's (women's) Tjukurrpa is to the women, while the other male lawyers "are not strong and important". 29 Mrs Patterson also said this: "25. If we tell those little men, those little lawyers the same that we are telling the judge there would be trouble. Those other women will tell us we are not allowed to tell. If we went ahead and told those men lawyers that little bit the other women will get angry and flog us. The judge is important we all understand that. 26. We can't have men lawyers reading what gets written down about women's business in this case. From the start we got to tell those men lawyers 'Don't read' because we will be talking about women's sacred Tjukurrpa. I will get flogged if those men lawyers read that. It will make trouble for me. 27. The trouble I will get for all of these things comes from the Tjukurrpa. 28. We will not get into trouble for telling that judge that little bit because he is big and important and he needs to understand how strong and important minyma's (women's) Tjukurrpa is." 30 Barbara Tjikartu (who has also given her oral evidence in chief) explained that minyma law must be kept separate. Indeed, she said that: "[I]n Arnangu law if a woman talks to a man about women's secret law she'll be killed. That's really strong law. That comes from the Tjukurpa." 31 The women could tell the (male) Judge "a little bit of this women's side". This is because he has "got a special job to do". But they could not tell male lawyers. She also confirmed that the women could not tell the Judge the "really inside story" because that would be miirl-miirlpa. 32 Barbara Tjikartu addressed the question of written records as follows: "We don't want this women's side written down for other men to read. Only women lawyers can read this and the Judge. If men lawyers for Land Council or the government come and listen or if they will read our women's story, we won't give it. We can't tell them. If we told them about those places or took them there, they would get sick and we would get sick too. We can't do that."

The Applicants' Contentions 33 Mr Parsons SC, who appeared with Ms Keely for the applicants, said that the evidence showed that the maintenance of restrictions on the evidence was of particular importance to the applicants and other Aboriginal witnesses because of the cultural and customary concerns of the people of the eastern portion of the Western Desert. Indeed, so he argued, adherence to a regime of strict secrecy is more important for these people than for almost any other group of indigenous people in Australia. He noted, correctly, that both male and female witnesses who had given evidence in chief had clearly manifested considerable agitation when asked questions that they perceived required them to trespass on women's business or men's business. 34 Mr Parsons pointed out that the evidence of Dr Willis and Nellie Patterson indicated that the Aboriginal witnesses would not be prepared to tell the Judge the whole of the Tjukurrpa. This reinforced the secret nature of the evidence that was to be given. Moreover, the witnesses had explained why the Judge was in a different position to the lawyers and others who would be excluded by the orders from access to the gender restricted evidence. 35 Mr Parsons acknowledged that the Commonwealth would suffer some prejudice if its counsel were unable to communicate with each other in relation to gender restricted evidence. That is, Mr Parsons accepted that the Commonwealth would be impaired to some extent in the presentation of the case if Dr Perry could not communicate to Mr Hughston the details of female gender restricted evidence and if Mr Hughston could not communicate with Dr Perry the details of male gender restricted evidence. Mr Parsons submitted, however, that this would not prejudice the Commonwealth "unduly" for the purposes of s 82(2) of the NTA, having regard to the impact on the applicants if the motion were to fail. 36 Mr Parsons submitted that the Protocol agreed with the Northern Territory, if implemented, would ameliorate any prejudice that would otherwise be sustained by the Commonwealth. The critical information arising out of the restricted evidence would be available to both counsel, although the details of the stories and inma (ceremonies and songs) would be subject to restrictions imposed by the orders. Mr Parsons also argued that the volume of restricted evidence to be given in the manner foreshadowed by the Hearing Schedule was very limited and that, accordingly, any prejudice to the Commonwealth would be relatively modest.

The Commonwealth Contentions 37 Mr Hughston very fairly accepted two propositions on behalf of the Commonwealth. First, he acknowledged that although the Court has a discretion under s 82(2) of the NTA as to whether it takes account of the cultural and customary concerns of Aboriginal peoples, there was ample evidence in the present case to warrant the Court doing so subject to the question of undue prejudice. Secondly, he accepted that any prejudice to the Commonwealth by reason of the orders proposed by the applicants would be less significant in relation to ceremonies than in relation to oral evidence given on site. Mr Hughston acknowledged that there was unlikely to be a major difficulty from the Commonwealth's point of view, for example, if Mr Hughston was not permitted to attend the women's inma or to discuss that event with Dr Perry. 38 Mr Hughston also made it clear, quite reasonably in my view, that the Commonwealth's position on the motion was determined, at least in part, by the failure of the applicants to comply with the direction to file descriptive statements of restricted evidence to be led on site. As he observed, had such statements been filed, the Commonwealth perhaps may have decided that it had no objection to the regime proposed by the applicants. In the absence of descriptive statements, the Commonwealth was left in doubt both as to the nature and extent of the evidence that would be given on the three days. 39 The Commonwealth stressed that before any order could be made under ss 17(4) or 50 of the Federal Court Act, the Court must be satisfied that the interests of justice dictate that course: Western Australia v Ward (1997) 76 FCR 492, at 502, per Hill and Sundberg JJ. The Commonwealth also relied on the qualification imposed by s 82(2) of the NTA, namely that the cultural and customary concerns of Aboriginal peoples may not be taken into account if they prejudice unduly any other party to the proceedings. 40 Mr Hughston argued that any orders which would have the effect of precluding the Commonwealth's representatives from considering the whole of the evidence would prejudice the Commonwealth unduly, having regard to the volume of evidence apparently to be given. He identified five kinds of prejudice that would be occasioned by the proposed orders, that would: "(a) preclude any member of the legal representatives for the respondents having access to the whole of the evidence; (b) preclude counsel from being able to advise the client and seek instructions on the whole of the evidence; (c) inhibit the capacity of counsel to make meaningful decisions about cross examination or about the calling of evidence when counsel only knows a part of the evidence that has been admitted; (d) inhibit the capacity of counsel to make submissions on, and assist the court as to, the inferences and conclusions to be drawn from the evidence; and (e) leave open the possibility that distorted and erroneous submissions might be made (for example, it might be said that there is no evidence on a particular issue, whereas there is restricted evidence on precisely that issue)." The engagement of male and female counsel did not overcome the problem, since each would only be able to read part of the transcript and neither could discuss with the other the portions restricted to one sex. 41 Mr Hughston pointed out that the evidence suggested that the applicants were prepared to show considerable flexibility in relaxing apparently absolute prohibitions where it was in their interests to do so. If they were prepared to reveal secret women's business, for example, to a male judge or to reveal secret men's business to uninitiated male lawyers, anthropologists or court staff, it was difficult to understand why the flexibility could not extend to counsel of the opposite sex, where counsel would be subject to stringent constraints as to what could be revealed. Mr Hughston submitted that counsel, like the Judge, were officers of the Court and that they should be placed in the same position so far as the restricted evidence is concerned. 42 Mr Hughston noted that the restricted evidence likely to be given in the three days set aside might well be subject to challenge. While, understandably, he could not be categorical about the extent to which the evidence would be disputed, he gave reasons as to why the affidavit evidence "excited caution". 43 Mr Hughston also observed that unlike virtually all other cases, this one concerns a claim for compensation, as distinct from a claim for a determination of native title. While Dr Willis had explained the flexibility of the restrictions on gender sensitive evidence by reference to the importance of protecting sacred sites or securing title to land, this case was ultimately about money. 44 Finally, Mr Hughston made some criticisms of the breadth of the orders sought. It is fair to say, however, that most of these criticisms relate to the attempt to set up a more general regime than one applying only to the first tranche of gender restricted evidence.

reasoning 45 It is not uncommon in native title cases for gender restricted evidence regimes to be established (subject to further order of the Court) for the entirety of the proceedings: see, for example, the orders made at trial in Western Australia v Ward, reproduced at(1997) 76 FCR 492, at 495. However, as Beaumont J observed in Sampi v Western Australia [2001] FCA 620, at [7], it is extremely difficult for the Court to exercise statutory powers or discretions in the abstract. In the present case, debate ultimately focussed upon the orders that should be made in relation to the evidence to be adduced over three days in accordance with the Hearing Schedule. Even so, there is an element of uncertainty since, as Mr Hughston pointed out and Mr Parsons readily accepted, it is not yet known precisely what evidence will be given or indeed who will give the evidence. 46 The decision of the Full Federal Court in Western Australia v Ward establishes that, subject to the provisions of the NTA, the Court has power, pursuant to ss 17(4) and 50 of the Federal Court Act to order that evidence be taken only in the presence of a limited class of persons or that the evidence so taken not be disseminated other than to a defined class of persons: at 499, per Hill and Sundberg JJ. In exercising these powers, the Court must bear in mind the public interest in open justice and the prima facie right of each party to access all documents discovered or produced and all evidence at the trial: ibid. These public and private interests will not lightly be interfered with. In order to enliven the power in s 50 of the Federal Court Act, the applicants must show (relevantly) that orders of the kind specified there are "necessary in order to prevent prejudice to the administration of justice". 47 In Western Australia v Ward, Hill and Sundberg JJ made these observations (at 500) in relation to the statutory criteria: "In determining whether such prejudice exists, there will be a need to balance the public and private interests, to which reference has already been made, with the circumstances which gives rise to the application for suppression. No narrow interpretation is to be given to the s 50 expression 'prejudice to the administration of justice'. … It would be necessary for a judge, when a specific claim is made for an order under s 50, to evaluate the risk to the persons giving evidence, culturally and spiritually on the one hand, with the other factors to which reference has already been made on the other. Where the interests of justice in an overall sense require that evidence be given only to persons of particular gender, there is no reason why the Court should not confine the class of persons to whom that evidence may be given to persons of a particular gender. But the Court in so doing will be careful to ensure as best it can that justice is done not only to the person seeking to restrict the persons to whom the evidence may be made known, but also to the other parties to the litigation, particularly where the circumstances result in no one person being privy to the entirety of the evidence other than the judge. If that is a situation that can possibly be avoided without injustice, then it should be." Their Honours added this observation (at 502): "[T]he Court will not, as a matter of course, make an order restricting the hearing of evidence in a native title case to persons of a particular gender, perhaps excluding the clients from knowledge of that evidence as well as limiting knowledge of the evidence to persons of a particular gender. It will be only where the interests of justice dictate that course that such an order will be made." 48 Branson J emphasised that in every case in which orders of the exceptional kind under consideration in Western Australia v Ward are sought, the Court must be satisfied that the statutory grounds which justify their making are established. Her Honour said this (at 509-510): "The Court could only be so satisfied if, upon weighing all relevant competing interests impacting upon a proper assessment of what the justice of the case requires, the balance favours the making of such orders. The competing interests in any case are likely to include: (b) the interest in the open administration of justice; (c) the interest of the parties knowing of all evidence actually or potentially adverse to their respective interests; (d) the interest of the parties being able to test all evidence actually or potentially adverse to their respective interests; (e) the interest of the parties respectively being able to be represented as to all aspects of the case by the one representative or team of representatives; (f) the interest of the parties being able freely to choose their own legal or other representatives; (g) the interest of ensuring that the parties are equally able to give, and lead from others, the evidence relevant to their respective cases; (h) the interest of the Court showing respect for legitimate cultural and other differences between persons involved in the legal process; and (i) the interest of advancing, rather than detracting from the purposes of relevant legislation. To enable the above balancing exercise properly to be undertaken, it will, in my view, rarely, if ever, be sufficient for the Court to act simply on the assertion of counsel or a party that certain evidence which it proposes to lead is, for example, 'gender restricted'. Before making an order of the kind which I have described above as exceptional, the Court will wish to be satisfied, usually following the receipt of evidence, of the existence of the asserted legal or cultural rule or norm, of the extent to which (if at all) such rule or norm admits of flexibility in its application, of the importance of the relevant evidence to the case of the party seeking to call it, of the degree of likelihood that if the requested restrictions are not imposed on the publication of such evidence the evidence will not be given, and of the proportion of the total evidence proposed to be called by the applying party in respect of which orders restricting its publication are likely to be sought. In particular cases additional considerations might arise." 49 In considering the application of ss 17(4) and 50 of the Federal Court Act, it is necessary to have regard to s 82(2) of the NTA. As I have noted, that provision permits, but does not oblige, the Court to take account of the cultural and customary concerns of Aboriginal peoples. It follows from the terms of s 82(2) that there may be circumstances where it is not appropriate for the Court to take account of those concerns. Without attempting to be exhaustive, it may be, for example, that the concerns expressed by the Aboriginal people in a particular case are not likely to be threatened by any evidence given in the proceedings or that the stated concerns are not supported by probative evidence. 50 In the present case, there is, as Mr Hughston accepted, ample evidence (albeit as yet not tested) that both male and female witnesses have deeply held concerns about the consequences to them and to their culture if the evidence they intend to give about particular matters is made known to persons of the opposite sex. These matters include an account by the women of the Kungka Kutjarra Tjukurrpa and how its path of travel connects Mantarurr with Yulara and beyond; the performance of an inma connected with the Kungka Kutjarra Tjukurrpa narrative and a re-enactment of the Tjukurrpa as it travels through a particular site; evidence by men as to their spiritual links with sites at Kata Tjurta (the Olgas); and evidence by the men of the spiritual significance of particular rock holes and caves. There is no real dispute that, subject to the question of undue prejudice, the evidence warrants taking into account the expressed cultural and customary concerns of the applicants. 51 Section 82(2) of the NTA plainly contemplates that the Court, in conducting its proceedings, may take account of the cultural and customary concerns of Aboriginal peoples notwithstanding that some prejudice may be occasioned to other parties in the proceedings. The statutory qualification only applies if another party is "prejudice[d] unduly". 52 Neither the applicants nor the Commonwealth attempted to define the word "unduly". Mr Hughston submitted, I think correctly, that whether prejudice is "undue" is essentially a question of fact, dependent upon the circumstances of the particular case. There may be some circumstances in which prejudice would be regarded as "undue" independently of the nature of the cultural and customary concerns of the Aboriginal peoples. If, for example, it is practically impossible for a respondent to mount an effective defence to a native title claim should orders be made protecting the cultural and customary concerns of the applicant, the prejudice is very likely to be regarded as undue. There may be other circumstances where in order to determine whether a respondent has been "prejudice[d] unduly" it is appropriate to weigh in the balance the nature of the concerns of the Aboriginal peoples and the nature of the prejudice likely to be sustained by the respondent. 53 Although the Commonwealth did not adduce any specific evidence of prejudice, I have no doubt that, largely for the reasons given by Mr Hughston, it will sustain some prejudice should the Court take into account the expressed cultural and customary concerns of the applicants in conducting the proceedings. For this purpose, I take the expression "[i]n conducting its proceedings" in s 82(2) of the NTA, to encompass consideration of whether orders should be made under ss 17(4) and 50 of the Federal Court Act. 54 On the material before me, however, I do not think that orders of the kind proposed by the applicants in relation to the evidence to be taken in and around Yulara would cause the Commonwealth to be prejudiced unduly. I bear in mind the matters raised by Mr Hughston. However, I also take into account the following:

• the Protocol proposed by the applicants and accepted by the Territory would ameliorate, although not necessarily remove, the prejudice occasioned to the Commonwealth by reason of the inability of both its counsel to be present at the hearing and to discuss the restricted evidence between themselves;
• the Commonwealth is represented by experienced counsel who, so I would infer, are not unfamiliar with the general nature of the restricted evidence likely to be adduced; and
• at this stage, it does not seem that the restricted evidence will be so extensive that the Commonwealth's ability to defend the proceedings will be severely impaired. 55 In addition, I think it appropriate to take into account in assessing whether the Commonwealth will be prejudiced unduly, that both male and female Aboriginal witnesses would be likely to suffer severe consequences, in accordance with the traditions of the eastern Western Desert peoples, if they revealed gender sensitive information to persons of the opposite sex. Those consequences are such that there is a significant risk that unless the evidence is restricted, the applicants and other Aboriginal witnesses may not be prepared to give evidence that could be of some importance to their claim. While I accept, as Mr Hughston submitted, that the claim is only for compensation, I nonetheless think that the proceedings can fairly be regarded as of very considerable importance to the applicants. This is so not only because of the fact that they are seeking substantial compensation but because an essential part of that claim is to show that they had native title rights and interests in what is now the Yulara town, until those rights and interests were extinguished. 56 Subject to one qualification, I am satisfied that having regard to the matters identified in Western Australia v Ward, the balance favours making exceptional orders of the kind sought by the applicants. The evidence to which I have referred shows that the subjects of the proposed gender restricted evidence are clearly extremely sensitive under the laws and customs of the Aboriginal people. Further, as I have noted, there could be serious consequences for them if secrecy is not preserved. While there will be some impact on the Commonwealth in its conduct of the proceedings, that impact will be ameliorated by the factors I have identified. 57 In a sense, the difficulty is not so much with the approach that should be taken when the restricted evidence is given on site. The balance in my view is very clearly in favour of the making of orders restricting the persons who can be present at the time evidence is taken and restricting the manner in which the evidence is to be recorded. Unless such orders are made, I am satisfied that there would be prejudice to the administration of justice because the applicants could not adduce relevant evidence except on pain of disclosures that could cause them significant emotional and physical harm. The more difficult question is whether counsel for the Commonwealth should be prevented from reading the transcript of the restricted evidence or from discussing the significance of that evidence between themselves. The considerations in relation to that question are much more finely balanced, especially bearing in mind the consequences for the Commonwealth in the conduct of its case. However, having regard particularly to the evidence of Dr Willis and Mrs Patterson indicating that significant adverse consequences could flow if male lawyers read transcripts of women's business and if female lawyers read transcripts of men's business, I think the balance in the same sense falls in favour of restricting access to the transcripts. 58 The qualification to which I have referred in [56] above is that, partly by reason of the applicants' default in complying with the Court's directions, the nature and significance of the restricted evidence to be given are not yet clear. It is possible, for example, that particular evidence might be given which would cause very serious prejudice to the Commonwealth in the conduct of its case unless both counsel were made aware of its import. I think it appropriate to reserve to the Commonwealth the right to move the Court to modify the orders should either counsel consider it appropriate to do so having regard to the nature of the restricted evidence that is actually given. In a sense, this does no more than provide an opportunity, which would be available in any event, for the Commonwealth to apply to modify an interlocutory order. I think it important, however, that the applicants be aware of the possibility. 59 I should add that I have not overlooked the Commonwealth's contention that it is anomalous for the applicants to be prepared to be "flexible" in the application of traditional laws and customs when their interests are at stake, yet insist on the unqualified application of those laws and customs to the detriment of the opposing party. While I follow the force of that argument, the evidence addresses the reasons for the applicants' willingness to modify their laws and customs when faced with the peculiar circumstances of a native title or compensation claim. I cannot conclude, on the material before me, that the applicants' beliefs and fears are anything but genuine. Nor do I think, having regard to the evidence, that the "flexibility" of the applicants' position tips the balance against orders being made to protect the sensitive nature of the evidence to be given on site in accordance with the Hearing Schedule.

orders 60 The orders I propose to make are as follows: 1. Orders 3, 4 and 5 are to apply to male gender restricted evidence. 2. "Male gender restricted evidence" means such information relating to Aboriginal law and custom as may be identified, recorded in written form or given in oral evidence at the hearings to take place on 3, 4 and 5 November 2003 in accordance with the Annotated Hearing Schedule and Planning Notes dated 28 October 2003, which information may not be disseminated to: (a) women; (b) uninitiated men; (c) non Aboriginal men; or (d) children. 3. The following people only may be present at the hearing when any male gender restricted evidence is given as oral evidence or may read any male gender restricted evidence or any transcript thereof: (a) any male party; (b) any male expert engaged by a party for the purpose of providing advice about such matters; (c) any male counsel, male solicitor or necessary male staff of a party; and (d) the Judge and those male staff as directed by the Judge. 4. Male gender restricted evidence must not be divulged to any person not present at the hearing other than: (a) male parties; (b) male experts engaged by a party for the purpose of providing advice about such matters; (c) male counsel, male solicitors or necessary male staff of a party; and (d) a Judge and those male staff of a Judge as directed by the Judge. 5. Male gender restricted evidence: (a) shall be recorded and transcribed by a man; (b) shall, along with any audio and computer records of the evidence, be kept separate from the general transcript and shall be printed on coloured paper; (c) shall have a covering sheet marked: "'Gender Restricted Evidence' - This transcript records evidence and submissions in relation to matters of Aboriginal law and custom which by Order of the Court must not be viewed by any person other than: (i) any male party (ii) any male expert engaged by a party for the purpose of providing advice about such matters; (iii)any male counsel, male solicitor or necessary male staff of a party; and (iv)the Judge and those male staff as directed by the Judge." 6. Orders 8, 9 and 10 are to apply to female gender restricted evidence. 7. "Female gender restricted evidence", means such information relating to Aboriginal law and custom as may be identified, recorded in written form or given in oral evidence at the hearing to take place on 3, 4 and 5 November 2003 in accordance with the Annotated Hearing Schedule and Planning Notes dated 28 October 2003, which information may not be disseminated to: (a) men; (b) young women; (c) non Aboriginal women; or (d) children. 8. The following people only may be present at the hearing when any female gender restricted evidence is given as oral evidence or may read any female gender restricted evidence or any transcript thereof: (a) any female party; (b) any female expert engaged by a party for the purpose of providing advice about such matters; (c) any female counsel, female solicitor or necessary female staff of a party; and (d) the Judge and those female staff as directed by the Judge. 9. Female gender restricted evidence must not be divulged to any person not present at the hearing other than: (a) female parties; (b) female experts engaged by a party for the purpose of providing advice about such matters; (c) female counsel, female solicitors or necessary female staff of a party; and (d) a Judge and those female staff as directed by the Judge. 10.Female gender restricted evidence: (a) shall be recorded and transcribed by a woman; (b) shall, along with any audio and computer records of the evidence, be kept separate from the general transcript and shall be printed on coloured paper; (c) shall have a covering sheet marked: "'Gender Restricted Evidence' - This transcript records evidence and submissions in relation to matters of Aboriginal law and custom which by Order of the Court must not be viewed by any person other than: (i) any female party (ii) any female expert engaged by a party for the purpose of providing advice about such matters; (iii) any female counsel, male solicitor or necessary male staff of a party; and (iv) the Judge and those female staff as directed by the Judge." 11. Any restricted gender evidence given at the hearings to take place on 3, 4 and 5 November 2003 shall be subject to the Protocol referred to in paragraph 15 of the Judgment. 12. At the conclusion of the proceedings, including any appeal, all gender restricted transcript or other records of such transcript including computer disk or tapes, shall be delivered up by the parties to the solicitors for the applicants, for destruction. 13. The Commonwealth have liberty to apply on 72 hours notice to modify the terms of these orders. I certify that the preceding sixty (60) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate: Dated: 31 October 2003 Counsel for the Applicants: Mr D Parsons SC with Ms A Keely

Solicitor for the Applicants: Central Land Council

Counsel for the First Respondent: Mr T Pauling QC with Ms J Kelly

Solicitor for the First Respondent: Northern Territory Government Solicitor Counsel for the Third Respondent: Mr V Hughston SC with Dr M Perry Solicitor for the Third Respondent: Australian Government Solicitor

Date of Hearing: 30 October 2003

Date of Judgment: 31 October 2003