Sampi v State of Western Australia

STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR EDUCATION, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR LANDS AND MINISTER FOR MINES AND ABORIGINAL LANDS TRUST AND: FIRST RESPONDENTS

A R J INVESTMENTS PTY LTD, ADVANCE PTY LTD, WARREN MELVYN ARMS, ARROW PEARL CO PTY LTD, AUSTFISH PTY LTD, AUSTRALIAN SEA PEARLS PTY LTD, BLUE SEAS PEARLING CO, BRAMPTON FISHING CO PTY LTD, BROOME FISH AND DIVE CHARTERS, BROOME PEARLS PTY LTD, CAYSAND FISHERIES, CLIPPER HOLDINGS PTY LTD, COMEDIA PTY LTD, CYGNET BAY PEARLS, ROSS ROBERT FENN, IAN A MAY, P MAY, JOHN L JACKSON, NORMAN ALLAN JAMES, GORDON MASSEY, NOELINE MASSEY, MAXIMA PEARLING CO PTY LTD, EDEN MORRISON, BRANSBY MORRISON, SUSAN MORRISON, N & C HOSCHKE PTY LTD, RONALD FREDERICK NASH, NEWFISHING AUSTRALIA PTY LTD, MERVYN O'BYRNE, ELAINE O'BYRNE, PASPALEY PEARLING COMPANY PTY LTD, PASPALEY PEARLS PTY LTD, PEARLS PTY LTD, LYALL PRICE, R B LOWDEN PTY LTD, REDPEX NOMINEES PTY LTD, ROEBUCK PEARL PRODUCERS PTY LTD, TERRITORY CHIEF FISHING COMPANY, TONY LA MACCHIA, URS FELIX, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL AND ZILZIE NOMINEES PTY LTD

REASONS FOR JUDGMENT (ON APPLICANTS' APPLICATION TO RESTRICT PUBLICATION OF CERTAIN EVIDENCE)

INTRODUCTION 1 This is a gender-restricted (male only) evidence application made by the applicants in a contested native title matter, the final hearing of which is fixed to commence on 8 May 2001. 2 In Western Australia v Ward (1997) 145 ALR 512 the Full Federal Court (Hill, Branson and Sundberg JJ) held (Order 6) that: "Occasions may arise when it will be in the interests of the administration of justice that the taking of evidence should occur in restricted circumstances. These occasions may arise where traditional laws and customs prevent women and men respectively speaking about certain matters, for example matters going to Law, ceremony and ritual, in the presence of persons of the opposite gender and the communication of the details of such matters to persons of the opposite gender." 3 The parties accept, as was held in Ward, that the Court's powers in the present context are found in s 17(4) and s 50 of the Federal Court of Australia Act 1976 (Cth), read in conjunction with s 82(2) of the Native Title Act 1993 (Cth) ("the Act"). 4 Further, as I followed the arguments before me, the parties also accept, consistently with Ward, that the exercise of the Court's discretion in this connection will involve a balancing of several considerations; that is to say, on the one hand, the promotion of open justice (with a view to achieving full accountability of the judiciary and its processes); and the provision of procedural fairness by recognition of the entitlement, prima facie at least, of each party to the litigation to access all material used or disclosed in the proceedings (with a view to achieving both private and public confidence in our court system); and, on the other hand, the public and private interest recognised by the common law (and reinforced in this context by the express provisions of s 82(2) of the Act) in respecting confidences by the adoption of proportionate measures. 5 In the exercise of the discretion to restrict or not to restrict, the ultimate question, as was held in Ward (and as the parties here accept) is to ask which course do the interests of justice dictate? 6 As Branson J pointed out in Ward, this question is not to be determined in the abstract. I turn then to the specifics. I do so upon the footing that the present application is truly interlocutory, as a matter of both form and substance, so that the orders now to be made (which are framed in the light of the material now before the Court) may be varied on the application of a party, or on the Court's own motion, should the relevant circumstances change. Accordingly, general liberty to apply will be reserved.

THE EXERCISE OF THE PRESENT DISCRETION 7 This application is made in respect of several categories of evidence (collectively hereafter referred to as "the Gender-Restricted Evidence") as follows: (i) the evidence which is described in the affidavit of the first applicant, affirmed 28 March 2001, as follows: "2. We want to give some evidence which belongs to men only. We want the judge to understand that no women or children can know about this. 3. Bardi and Jawi Law says that some things can only be talked about by initiated men. These things are not open for just anybody to hear or talk about. It breaks our Law if that happens. We call these things ngulungul which means secret and important and belonging to initiated men. 4. Because the judge is a big Law man, and other white Law men are talking about our country, we thing we should talk to them about some of this ngulungul business. 5. The ngulungul things we want to talk about show how we truly belong to this country, land side and sea side from the beginning. 6. We cannot talk about these things if women or children will hear them, see them, or read about them. If that happens, we could get sick and die because our Law is very dangerous. We cannot break our Law. 7. We know that old anthropologists have written down some of our ngulungul things before. We think this is wrong. The things they have written about cannot be spoken in front of women and children. We know whitefellas think a book or something like that is open to anybody. But these things I am talking about are not open to women and kids in our Law. We must keep them secret. 8. In our Law, we can only talk about ngulungul things with other men face-to-face. We need to see those men close up when we talk to them about ngulungul things. Those men must hear it from us, not from a book or paper. 9. We do not want our ngulungul things written down before they are told to the judge, because we have to protect our Law. 10. Also it is important for men to see the country we are talking about. 11. We want Geoff Bagshaw, who knows about our Law and who knows what old anthropologists have put in books, to let the judge know what people should not talk about in public. We hope this will help everybody. 12. We also want Geoff Bagshaw to tell the judge names of our Bardi and Jawi families who have died not too long ago. Our Law says that we are not allowed to speak these names for many years. Hearing those names will hurt people and make them feel sorry." 8 (It should be recorded here that Mr Sampi was not challenged on his affidavit; and that, accordingly, I propose to accept this evidence for present purposes.) (ii) Mr Bagshaw's notes dated 17 April 2001 described as "confidential notes on Bardi and Jawi gender restricted (male only) sites, cosmology and documentary records" (unedited version). 9 (It should also be recorded here that I have not found it necessary to look at this unedited material at this stage, and an edited version has been filed. No real challenge has been made to the applicants' description of the material in question as "confidential". Accordingly, for present purposes, I am prepared to accept that characterisation. (iii) The material described in the applicants' document entitled "Substance of restricted evidence" dated 1 March 2001, specifically the following: "2. Information about certain cosmological supernatural ancestral figures (inamunonjin) - (a) names of the places they visited, (b) routes taken by them within the area, (c) their responsibility for intra-regional differentiation of territory, (d) their responsibility for the introduction of the principal social institutions of the Bardi and Jawi peoples, including initiation rites which continue to be practised by the Bardi and Jawi peoples (see Bagshaw [1999], p 27); in addition to those publicly known, such as Lululu, rirrgangani, judamini, jiyada, marrgaliny, aragul, gandara, ambana, andawiny, jangara, bunggura, linymal and buru (referring to the kangaroo, rather than the use of the word relating to country) (see Bagshaw [1999], pp 39-41), ingarda, irrmolol and gurrnginji (Bagshaw [1999], p 32, fn 17), Jul and Galalung (see Bagshaw [1999], p 42, fn 1, pp 50 and 68, fn 7). 3. The traditional custom of access limitations to particular places, known as ngulungul, in respect of men of specific standing within the community (see Bagshaw (1999), p 28); and the significance of certain geographical features at such places, known as ngulungul, which are not publicly known (see Bagshaw (1999), at p 49, para 5.2, fn 5 and 6). (4) The nature, content and significance of ceremonies and rituals, additional to those which are publicly known, in particular, the irrganj rite (see Bagshaw (1999), pp 29 and 31) and the Ululung revelatory ceremony (described in outline in Bagshaw (1999), p 30 and referred to in the Substances of Evidence of Paul Sampi at para. 17 and Elizabeth Puertollano at para. 15) which form a whole with the publicly known rites of anggwuy (see Bagshaw (1999), p 29 and Supplementary Substance of Evidence of Frank Davey, para 15-23)) and nguril (see Bagshaw (1999), p 31 and Supplementary Substances of Evidence of Aubrey Tigan, para 5, Dennis Davey, para. 3-10, Frank Davey, para 3, 11-13). (5) Cosmological myths which are not publicly known, additional to myths, such as the Lululu myths, which are publicly known; and are of similar content, meaning and territorial specificity to the publicly known myths (see Bagshaw (1999), p 39-41)." 10 As I followed the parties' respective contentions, there was no serious suggestion made that material of the foregoing kind could not qualify for protection, under s 17(4) or s 50 of the Federal Court of Australia Act, read with s 82(2) of the Act, in the light of the decision in Ward. Rather, the argument focused (properly I think) upon the detail of the appropriate adjectival considerations and, in particular, upon the dimensions and character of that protection, having regard to what protection was necessary, in terms of proportionality, in order to achieve the right balance between the competing interests at stake. The representatives of the applicants assisted in the process by providing their version of draft directions, many of which adopted directions which had been made in similar situations in other native title cases. Moreover, as the oral submissions were developed, it appeared that few, if any, major differences in approach remained between the parties, with one exception. Otherwise, the real points of departure were, in the ultimate analysis, no more than matters of drafting or expression. The exception was the respondents' suggestion, which I have adopted, in proviso (b) to direction 1. Indeed, ultimately the applicants did not object to this proviso. 11 Given that background, I am prepared to accede to the applicants' application as a matter of principle, but will do so only upon the footing that machinery will now be established by the directions to be given, which will ensure that none of the respondents is denied procedural fairness. Moreover, as will appear, the direction to be given now will address only issues of immediate concern. Other issues, such as the treatment of transcript, have now been deferred, but will be revisited when the time arrives and all the circumstances are known. (As I understand it, it was not necessary that I rule at this stage on matters other than the question of principle, so that the preparation for the itinerary could proceed.) Again, as I followed the parties' oral submissions, it appears that a significant measure of common ground on the procedures to be followed in areas such as transcript, is likely to emerge in due course.

Orders 12 Accordingly, I make the following orders: 1. In respect of the gender restricted evidence described in these reasons for judgment, subject to provisos (a) and (b) (below) and subject to any other subsequent direction, when this evidence is given, only the following males may be present: the Judge and Court staff, the applicants, the witness, counsel, the transcript recorder and expert witnesses, provided that (a) the Court and the applicants' solicitors have previously been informed in writing by the respondent's solicitors of the identity of the expert witness or witnesses; and (b) that the solicitors for the applicants have previously filed and served a statement agreed by the parties' respective expert witnesses as to the relevant effect of the restricted evidence, such statement to be by way of summary only, and without disclosing the contents of such evidence. 2. Stand over the balance of the applicants' present application in respect of the transcript, the disclosure, if any, of the restricted evidence (etcetera) to the commencement of the hearing of the principal proceedings in Broome on 8 May 2001 at 2.30 pm. 3. Reserve general liberty to any party to apply in respect of these orders on such notice, if any, as a Judge may allow. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Solicitor for the Applicants: Kimberley Land Council

Counsel for the First Respondents: Ms R Webb

Solicitor for the First Respondents: Crown Solicitor for the State of Western Australia

Counsel for the Second Respondents Mr K M Pettit

Solicitor for the Second Respondents: Australian Government Solicitor

Counsel for Western Australia Fishing Industry Council and the Eighth Respondents Mr P Quinlan

Solicitor for Western Australia Fishing Industry Council and the Eighth Respondents Hunt & Humphrey

Counsel for the Seventh Respondent Ms L Flynne

Solicitor for the Seventh Respondent: Blake Dawson Waldron

Date of Judgment: 30 April 2001