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.