FEDERAL COURT OF AUSTRALIA

NATIVE TITLE - CONSTITUTIONAL LAW - whether orders made by Federal Court judge under s 50 of the Federal Court of Australia Act (1976) to restrict access of “gender restricted” evidence a valid and proper exercise of power - whether orders inconsistent with Ch III of the Constitution.

Jucidiary Act 1903 (Cth); ss 78 and 78B

The Constitution; s 72 and Ch III

Native Title Act 1993 (Cth); ss 82(2) and 85

Federal Court of Australia Act (1976) (Cth); ss 17(4) and 50

Dietrich v The Queen (1992) 177 CLR 292, considered

Grollo v Palmer (1995) 184 CLR 348, considered

Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 70 ALJR 743, considered

Hadid v Lenfest Communications Inc (Hill J, 4 November 1996, unreported), referred to

Australian Broadcasting Commission v Parish (1980) 29 ALR 228, referred to

Yarmirr v The Northern Territory of Australia (Olney J, 15 April 1997, unreported), considered

THE STATE OF WESTERN AUSTRALIA v BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES

WAG 57 of 1997

HILL, BRANSON & SUNDBERG JJ

SYDNEY (Heard in Melbourne)

8 JULY 1997

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.         The appeal be allowed in part.

2.         The orders made by Lee J on 11 April 1997 be varied by deleting from order 7 the words “for these reasons” and by substituting for order 6 the following new order:

            “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 appellants pay the respondents’ costs of the appeal.

4.         There be no order as to costs of the intervenors.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

HILL & SUNDBERG JJ:

The Miriuwung and Gajerrong people claim native title in relation to an area of land and water which, for present purposes, may be sufficiently identified as being in or around the town of Kununurra in the north east of Western Australia.  The claim has not yet been heard.  After opening statements had been prepared, the judge to whom the application has been allocated (Lee J) sought submissions as to appropriate directions to be made for the hearing.  In particular, his Honour was concerned to have determined whether a protocol should apply to the receipt of evidence which, as a result of cultural or customary concern, might be the subject of restriction on access of evidence.  In the result, his Honour heard submissions from some, but, it is suggested, not all, of the parties, particularly as to the question whether what his Honour referred to as “gender restrictions” should apply.  His Honour rejected a submission that evidence be taken before a judge of a particular gender, but made orders concerning the reception of gender restricted evidence. 

The orders which his Honour made in relation to that issue were in the following terms:

“6.       Occasions will arise when the taking of evidence should occur in restricted circumstances.  The occasions will arise by reason of traditional laws and customs which 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.

7.         In those cases where the taking of evidence should be restricted for these reasons, it is to be understood that restrictions will apply to both the circumstance in which the evidence is taken and recorded, and the subsequent sharing, communication or dissemination of the evidence or record of the evidence produced.

8.         In the event that a party seeks restrictions in respect of evidence to be given in the proceedings, notification of the restrictions sought and the basis for the restrictions is to be given to the Court and other parties no later than 28 days before the date the evidence is to be heard.

9.         Any party who objects to the restrictions sought is to file and serve a notice of objection within 14 days of the receipt of the notification of the restrictions sought.

10.       Each party is entitled to be represented at a hearing of ‘gender restricted’ evidence by no more than two lawyers of the same sex as the witnesses.

11.       Each party is entitled to have present at a hearing of ‘gender restricted’ evidence one anthropologist of the same sex as the witnesses for the purpose of assisting the party’s lawyers.

12.       Only if cause has been shown and leave obtained from the Court to do so may -

            (a)        the party’s lawyers and anthropologists who attend the hearing of ‘gender restricted’ evidence divulge information about the evidence to that party’s other lawyers or anthropologists engaged in the proceedings regardless of gender, or

            (b)        transcript of ‘gender restricted’ evidence be available to the party’s other lawyers or anthropologists regardless of gender.

13.       The transcript of evidence or other record made of or in relation to any evidence restricted on the basis of gender and information in respect thereof may not be disseminated to any persons other than to counsel, instructing solicitors and anthropologists as instructed by a party, such persons being of the gender required by the aforesaid restriction unless leave has been obtained from the court in the same terms as described in item 7.”

The State of Western Australia, by leave, appeals from the decision of the primary judge and consequential orders made, so far as those orders related to gender restricted evidence.  The grounds of appeal allege that the Court lacked jurisdiction to make the orders as well, or alternatively, that the orders as made were unreasonable.  It is submitted that a party to the proceedings is entitled to be represented at the hearing of gender restricted evidence by lawyers of either sex, and that orders should be made to that effect.

As a constitutional issue was raised, notices were given under s 78B of the Judiciary Act (1903) (Cth) to the Attorney-General of the Commonwealth and the Attorneys-General of each State and Territory.  In consequence, the Attorneys-General for the State of New South Wales and the Northern Territory intervened.  The Attorney-General for Western Australia also intervened, albeit that the State was a party in any event to the proceedings.  The remaining parties to the proceedings were the applicant to the native title claim, that is to say Mr Ward and others on behalf of the Miriuwung Gajerrong peoples and the second and third respondents to the native title application, namely Cecil Ningarmara and Delores Cheinmora and others on behalf of the Balangarra peoples.  The Minister for Aboriginal and Torres Strait Islander Affairs also appeared as a party represented by the Solicitor-General, supporting the argument for constitutional invalidity.

It is convenient to deal first with the constitutional issue before considering the narrower issue of discretion.

WERE THE ORDERS INCONSISTENT WITH CHAPTER III OF THE CONSTITUTION ?

There is nothing explicit in Ch III of the Constitution or elsewhere which requires the conclusion that the orders made by the learned primary judge were invalid.  However, it was submitted that it is implicit from the provisions of Ch III, which vest the judicial power of the Commonwealth, inter alia, in Federal courts, that the parties to a proceeding in a Federal court must take the judge as they find him or her.  Section 72 of the Constitution, it is said, sets out the only criteria relevant to judicial appointment.  Age, race or religion are not relevant matters and a judge appointed pursuant to s 72 to a Federal court may hear and determine matters arising in that court and exercise the judicial power of the Commonwealth, irrespective of gender, race or religion.  That much may be accepted.

Then, it is said, barristers and solicitors appearing in Federal courts must likewise be taken as they are found.  They are, so the submission would have it, officers of the court and they participate in the exercise by the court of judicial power by the hearing and determining of the matter before the court.  From this it is said to follow that no order might be made restricting a barrister or solicitor otherwise qualified from appearing in a matter in a Federal court where the restriction sought to be made is one based on religion, gender or race.

It may be accepted, as indeed it was submitted, that it is implicit in Ch III of the Constitution that a Federal court will afford to those who come before it, natural justice.  So, in Leeth v The Commonwealth of Australia (1991-2) 174 CLR 455 at 470-1 Mason CJ, Dawson and McHugh JJ suggested that it could be inconsistent with the exercise of judicial power for the legislature to require a Ch III court to act in a manner contrary to natural justice.  And in Dietrich v The Queen  (1992) 177 CLR 292 Gaudron J spoke (at 362) of the fundamental requirement of a fair trial as being:

“... entrenched in the Commonwealth Constitution by Ch. III’s implicit requirement that judicial power be exercised in accordance with the judicial process.”

A similar view was expressed in the same case by Deane J where his Honour said (at 326):

“In so far as the exercise of the judicial power of the Commonwealth is concerned, that principle [ie a fair trial according to law] is entrenched by the Constitution’s requirement of the observance of judicial process and fairness that is implicit in the vesting of the judicial power of the Commonwealth exclusively in the courts which Ch.III of the Constitution designates.”

The remaining members of the majority based the right to legal representation and the concomitant stay of criminal proceedings where such representation was unavailable and might result in an unfair trial on matters outside the Constitution.

In Grollo v Palmer (1995) 184 CLR 348 and more recently in Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 70 ALJR 743, the High Court explored the concept of incompatibility with judicial power.  In the former case the Court (comprising Brennan CJ, Deane, Dawson and Toohey JJ) emphasised that (at 365):

“no function can be conferred that is incompatible ... with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.”

That notion of incompatibility was adopted by Toohey J in Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577 as a ground for holding that an Act of the New South Wales Parliament was invalid where that Act ordered detention of a specified person for a specified period.  Gaudron J in the same case (at 839) emphasised that Ch III of the Constitution required that the parliaments of the States not legislate to confer powers on State courts which were repugnant to or incompatible with an exercise by such courts of judicial power of the Commonwealth; see, too, per McHugh J at 847.

Finally, it may be noted that in Wilson the High Court made clear the significance of judicial independence and the separation of judicial from political functions.  So there exists a constitutional condition on the vesting of non-judicial power in or the conferring of non-judicial function on a Ch III judge, namely, that the exercise of the power or performance of the function be compatible with his or her performance of judicial function: see the joint judgment of Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ (at 749).

Running through Grollo and Wilson, is the concept that the Constitution precludes Parliament from conferring powers on a court that would be exercised in a non-judicial way, for example, partially, with bias, or otherwise in a way offensive to the rules of natural justice.  As Gaudron J said in Wilson (at 755):

“... impartiality and the appearance of impartiality are defining features of judicial power.”

A law which required Ch III judges to determine cases without hearing the parties would, no doubt, be inconsistent with the judicial function and void.  Likewise, a law that provided that Ch III judges were not required to give procedural fairness would be incompatible with the exercise of judicial power and be struck down.  But it is a large jump from examples such as this to say, as the Commonwealth, the State of Western Australia and the Northern Territory all say, that every litigant in a Federal court is entitled at all times and in all circumstances to be represented by legal advisers of their own choice irrespective of gender.

Were Parliament to pass a law outlawing legal representation before a Ch III court, it may well be that such a law would be held to be invalid as inconsistent with the exercise by Ch III courts of judicial power.  Such representation may well be inherent in the obligation of courts to provide procedural fairness.  But just as what is necessary to afford procedural fairness will depend upon the circumstances of the case, so, too, there may be circumstances where the right to a lawyer of one’s own choice may need to give way to the overall interests of justice.  In our view, the present is such a case.

A court exercising Federal jurisdiction, like any other court, must, if it be necessary to ensure that justice be done and be seen to be done, and thus that the integrity of the judicial process be protected, have power to prevent a particular counsel or solicitor appearing for a party.  In Black v Taylor [1993] 3 NZLR 403 at 408-409 Richardson J said:

“Another aspect of the inherent jurisdiction is the control of a particular proceeding in the Court.  There the court's concern is with the administration of justice in a particular case and in the generality of cases and with the associated basic need to preserve confidence in the judicial system.

            ...

An associated consideration is the fundamental concern that justice should not only be done but should manifestly and undoubtedly be seen to be done.

            ...

In making that assessment [of the appearance of justice] the Court will also give due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.  The right to the choice of one's counsel is an important value.  But it is not an absolute.”

It is true that a court such as the Federal Court which exercises jurisdiction conferred by statute does not have "inherent jurisdiction".  However, in addition to the powers expressly or by implication conferred on it, it has such powers as are incidental and necessary to the exercise of the jurisdiction so conferred.  See Parsons v Martin (1984) 5 FCR 235 at 241, Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 630-631 and Caboolture Park Shopping Centre Pty Ltd (In Liquidation) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 at 262-3..

In Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 at 590 Thomas J noted that the general right of a party to be represented by the counsel or solicitor of its choice must give way to the overriding principle of protecting the integrity of the judicial process.  See also Grimwade v Meagher [1995] 1 VR 446.

Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice.  The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information, and a real risk of lack of objectivity and of conflict of interest and duty (Grimwade v Meagher).  The present case is only another example of situations in which the "integrity of the judicial process", the "interests of justice", and the "need to preserve confidence in the judicial system", to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice.  That public interest is "an important value" (Black v Taylor at 408).  It is a serious matter to prevent a party from retaining its chosen lawyer (Grimwade v Meagher).  But as those cases illustrate, particular circumstances may require some modification of the public interest in the ability of a litigant to have a lawyer of its choice.

The particular difficulty upon which the submission rests is well demonstrated on the facts of the present case where it is contemplated that there will be some evidence to be given by men which, according to the customs of indigenous people, should only be revealed to men and some evidence where, according to the same customs, the evidence is known to women and may only be given to other women.  It is accepted by the parties, for the purposes of the present appeal, that it is notorious that there are circumstances where indigenous persons of one gender might rather refrain from giving evidence at all than reveal to a person of another gender matters secret to the gender to which the prospective witness belongs.  So, the orders proposed by the primary judge would have the consequence that the evidence gender specific to men would be revealed only to the male legal advisers and the evidence gender specific to women only to the female lawyers and neither the male nor the female lawyers will be able to speak to each other.  Thus, it is said that there will be no one person on either side of the record who would know all of the evidence or would be in a position to make submissions in respect of all of the evidence.

It is obvious enough that it is undesirable that there is no one legal adviser aware of all the evidence.  But that does not mean that the proposed course is necessarily unjust.  Weighed against the difficulty postulated must be the injustice that could be caused to applicants seeking to establish native title were those applicants required to reveal to a person of the opposite sex information which is, by virtue of traditional views of spirituality, required to be kept secret among persons of the same gender.

So, while it may very well be the case that parties may have no right to select a judge to hear a case upon the basis of race, gender or religion, it does not follow, as a matter of logic, or as a matter of justice, that no order can be validly made restraining evidence being communicated to legal advisers of a particular gender if the circumstances are such that justice requires that course.  Put another way, the implied requirements that a judge of a Ch III court afford natural justice is not a requirement that a Ch III judge do injustice.  Here, if justice requires a restriction in the dissemination of evidence, such restriction will not offend Ch III or any other part of the Constitution.

THE EXERCISE OF DISCRETION

The legal basis for an order of the kind made by the primary judge is to be found in s 50 of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) and see s 17(4) of that Act.  Section 50 provides as follows:

“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.”

Section 17(4) of that Act permits the Court to order the exclusion of the public from proceedings if the presence of the public or particular persons would be contrary to the interests of justice.  Hence, orders grounded on s 50 or s 17(4) predicate that the making of the order is required to do justice.

Subject to the specific provisions of the Native Title Act (1993) (Cth), to which reference will later be made, there would seem no reason to doubt the power of the Court to order that evidence be taken only in the presence of a limited class of persons or that the evidence so taken will not be disseminated other than to a defined class of persons.  However, while the Court may deny access to evidence in a particular case, there will be two policy considerations which will govern the exercise of that power.  These are the concern of the Court to promote and ensure open justice and the requirement, as a matter of procedural fairness, that a party to proceedings will have prima facie a right to access all documents discovered or produced and all material and evidence at a trial: see, generally, the discussion of the policy considerations applicable in Hadid v Lenfest Communications Inc (Hill J, 4 November 1996, unreported).

The public interest in open justice as well as the private interest of the parties to such access will not lightly be interfered with.  Section 50 of the Federal Court Act provides the criterion to be taken into account, relevantly, prejudice to the administration of justice.  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 circumstance 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”.  Indeed, in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 this Court gave that section a broad construction.  The section was, as Bowen CJ observed, not concerned with “trivialities”.  The prejudice of which s 50 speaks is “overall prejudice” and the “administration of justice” to which it refers is the administration of justice generally.  So, in a case such as the present, the interest of the parties, the effect that disclosure of the evidence may have and the advantages or disadvantages which an order under the section may bring with it, will all be weighed against the public interest in open justice to determine whether on balance an order should be made.  It will be only then that an order restricting publication of the evidence to a particular class of persons will be appropriate.

Mere assertion that disclosure of the evidence might cause some harm to the person giving the evidence would not necessarily suffice to justify an order.  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.

In the circumstances of the present case reference may be made as well to two specific provisions in the Native Title Act.  Section 82(2) of that Act is in the following terms:

“The Court, in conducting proceedings, must take account of the cultural and customary concerns of aboriginal peoples and Torres Strait Islanders.”

That parliamentary directive provides a foundation for an order of the kind appealed from.  However, s 85 of the same Act provides that:

“A party may appear in person or may be represented by a barrister, a solicitor or another person.”

That section, not greatly dissimilar in effect from s 78 of the Judiciary Act providing for legal representation in courts exercising Federal jurisdiction, led Olney J in Yarmirr v The Northern Territory of Australia (15 April 1997, unreported) to the conclusion that the Court was not authorised to make an order of the kind here under appeal.  The starting point for the conclusion reached by Olney J was s 78 of the Judiciary Act.  Whether, because of that section or otherwise, his Honour concluded that, apart from any specific power, the Court did not have authority to deny the right of a party to be represented by a barrister or solicitor by reason of gender.  If that conclusion flows from s 78, it is certainly not explicit in the language of that section.  Section 78 of the Judiciary Act and indeed the provisions of Part VIIIA of that Act, permit legal representation in Federal courts and deal with the entitlement of legal representatives to practice.  But the fact that the consequence of an order may be that a party to proceedings must be represented by a legal representative of a particular gender is not inconsistent with s 78.  For in such a case a party to the proceedings before the Court will still be appearing by a barrister or solicitor admitted to practice.  The party is not precluded from legal representation.  Rather, the legal representation in respect of particular evidence is restricted, having regard to the interests of justice.

Section 78 of the Judiciary Act and s 85 of the Native Title Act do not, as was contended for the appellant, confer on a party the right to counsel of its choice.  As a matter of words neither says that.  Section 78 confers on parties the option of appearing in person or being represented by barristers or solicitors who are entitled to practice in Federal courts or other courts exercising Federal jurisdiction.  Section 85 is wider in that it allows representation by someone who is not a lawyer.  Of course, in the usual case the court will not interfere with a party's choice of representative.  But that is not because either section confers a right to specific representatives.  Section 78 confers on a party who does not wish to appear in person the right to the services of lawyers who are admitted to practice.  Section 85 confers on such a person the right to the services of a lawyer or some other person.  As has already been said, a party's ability to select a preferred representative will be interfered with or qualified only where the interests of justice require this to be done.

After referring to s 82(2) of the Native Title Act, his Honour asked himself the question whether it empowered the Court to make an order of the kind contemplated.  His Honour took the view that s 82(2) did not operate to modify the provisions of s 78 of the Judiciary Act.  Strictly, that is so.  But, as we have already sought to indicate, s 78 itself does not prohibit the kind of order made here.  His Honour concluded:

“It is a generally accepted principle that the Court has no authority to exclude a party from the hearing of a proceeding except where the party’s conduct may justify his or her exclusion.  In my opinion it would rarely be the case where the presence of a party could be said to be contrary to the interests of justice.  Indeed, the contrary is so.  To exclude a party from the hearing of his or her own cause would be the very antithesis of justice.  I do not think that s 17(4) of the Federal Court Act operates so as to authorise the Court to exclude a party who has not misconducted himself or herself and in particular the section could not reasonably be construed so as to authorise the exclusion of a party merely by reason of the party’s gender.”

With respect to his Honour there are circumstances where a court operating under s 50 might exclude a party to the proceedings from accessing evidence which has been given.  The normal case where this might arise is where the evidence concerns commercially sensitive information and the proceedings are between two parties in competition with each other.  In such a case, if the interests of justice require, the Court may order that the evidence be made available only to the legal representatives of the party but not the party.  Of course, in making the order the Court will be conscious of the difficulties in which such an order places the legal representatives who may be unable to obtain instructions because the evidence is unknown to the client.  It will be an unusual case where such an order will be made.

So, too, in our view, the 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.

This leads us to a consideration of the actual order.  It is clear that what his Honour sought to do was to establish in advance a protocol for the taking of evidence in places that might be remote from communication.  The order is predicated on the premise that occasions would arise when the taking of evidence should occur in restricted circumstances.  However, the first paragraph of the order quoted above (order 6) suggests that the only relevant matter in reaching the conclusion that restricted circumstances exist will be the traditional laws and customs of aboriginal persons.  With respect, this is not so.  We doubt if his Honour really intended the clause to suggest that.  However, because the matter is of such importance, we are of the view that, although the appeal should otherwise be dismissed, order 6 should be amended so as to make clear that, in determining whether the evidence should be taken in the restricted circumstances with which the orders are concerned, the Court should at all times bear in mind the overall question whether it is in the interests of the administration of justice that the protocol be implemented.  Accordingly, we would propose that order 6 be amended to read as follows:

“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.”

We would for the same reason delete the words “for these reasons” in order 7.

Subject to the minor amendments suggested, the order is within power and appropriate in the circumstances.

In the course of argument it was observed that his Honour had, in order 10, restricted the number of lawyers who might be present.  If a party wished to have a greater number of lawyers than so ordered, then in our view it would prima facie be entitled to that, provided the lawyers are of the requisite sex.  However, no application was made to us to vary that order in this respect and accordingly we would not incorporate any variation on that issue in the orders flowing from the present appeal.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of their Honours Justice Hill and Justice Sundberg

Associate:

Dated:              8 July 1997

IN THE FEDERAL COURT OF AUSTRALIA                  )

                                                                                                )

WESTERN AUSTRALIA DISTRICT REGISTRY            )    WAG 57 of 1997

                                                                                                )

GENERAL DIVISION                                                         )

                        BETWEEN:               THE STATE OF WESTERN AUSTRALIA

                                                            Appellant (First Respondent)

                        AND:                          BEN WARD AND OTHERS

                                                            Respondents (Applicants)

CORAM:       HILL, BRANSON, SUNDBERG JJ

PLACE:          SYDNEY (Heard in Melbourne)

DATE:            8 JULY 1997

REASONS FOR JUDGMENT

BRANSON J:

ISSUE

This appeal raises an important issue as to the power of this Court when exercising jurisdiction under the Native Title Act 1993 (Cth) (“the Native Title Act”).

Section 82 of the Native Title Act is concerned with the way in which the Court operates in conducting proceedings under that Act.  It provides as follows:

“(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.”

As the trial judge observed:

“It is universally known that the lives of Aboriginal peoples conducted according to customary rules involve ‘gender restrictions’ on possession, receipt and disposition of cultural lore and artefacts, a requirement directed to the preservation of relationships that constitute the framework of Aboriginal societies”.

This appeal raises for consideration the issue of whether in conducting a proceeding under the Native Title Act a judge of the Court may, having given consideration to cultural and customary concerns of an Aboriginal party to a proceeding, and having concluded that a fair and just determination of the issues in the proceeding requires that there be restrictions based on sex placed upon the persons who may hear, read or otherwise know the detail of certain evidence to be called in the proceeding, impose such restrictions by orders which reach to parties, and to legal practitioners and experts retained in the proceedings.

FACTUAL BACKGROUND

After the opening statements of the first and second applicants were made by counsel, the trial judge asked the parties to make submissions on appropriate directions to be made for the further hearing of the matter.  In particular his Honour directed the parties to confer for the purpose of agreeing, if possible, an appropriate protocol to apply to the receipt of evidence in respect of which accepted cultural or customary concerns made it necessary for such evidence to be given in a manner consistent with those concerns.  The protocol envisaged by his Honour was intended also to include any proposed restrictions on access to the record of that evidence.

The parties were not able to agree upon a protocol for the calling of what has been described in this case as “gender restricted” evidence.  His Honour heard detailed submissions from the parties.  Not all parties accepted that evidence appropriately described as “gender restricted” evidence would necessarily require to be called in the case.  However, the possibility that such evidence might require to be called was recognised on all sides.

Having heard and considered the submissions of the parties his Honour determined that some directions should be made before the commencement of the taking of evidence to give guidance to the parties in the preparation of their respective cases.  The Court was at that stage sitting in Perth but at least some of the evidence of the applicants was to be heard in Kununurra and in remote rural settings in the general area of Kununurra.  His Honour stressed that the directions to be made by him would be subject to liberty to apply to vary the directions at any time.

On 11 April 1997 Lee J made an order which incorporated the directions proposed by him in the following paragraphs:

“6.        Occasions will arise when the taking of evidence should occur in restricted circumstances.  The occasions will arise by reason of traditional laws and customs which 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.

7.         In those cases where the taking of evidence should be restricted for these reasons, it is to be understood that restrictions will apply to both the circumstance in which the evidence is taken and recorded, and the subsequent sharing, communication or dissemination of the evidence or record of the evidence produced.

8.         In the event that a party seeks restrictions in respect of evidence to be given in the proceedings, notification of the restrictions sought and the basis for the restrictions is to be given to the Court and other parties no later than 28 days before the date the evidence is to be heard.

9.         Any party who objects to the restrictions sought is to file and serve a notice of objection within 14 days of the receipt of the notification of the restrictions sought.

10.       Each party is entitled to be represented at a hearing of ‘gender restricted’ evidence by no more than two lawyers of the same sex as the witnesses.

11.       Each party is entitled to have present at a hearing of ‘gender restricted’ evidence one anthropologist of the same sex as the witnesses for the purpose of assisting the party’s lawyers.

12.       Only if cause has been shown and leave obtained from the Court to do so may -

(a)        the party’s lawyers and anthropologists who attend the hearing of ‘gender restricted’ evidence divulge information about the evidence to that party’s other lawyers or anthropologists engaged in the proceedings regardless of gender, or

(b)        transcript of ‘gender restricted’ evidence be available to the party’s other lawyers or anthropologists regardless of gender.

13.       The transcript of evidence or other record made of or in relation to any evidence restricted on the basis of gender and information in respect thereof may not be disseminated to any persons other than to counsel, instructing solicitors and anthropologists as instructed by a party, such persons being of the gender required by the aforesaid restriction unless leave has been obtained from the court in the same terms as described in item 7.”

On 14 May 1997 the appellant was granted leave to appeal against the orders in pars 10, 11, 12 and 13 of the order of Lee J of 11 April 1997.

STATUTORY BACKGROUND

Section 82 of the Native Title Act is set out above.

It is appropriate to refer also to ss 17, 23 and 50 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”).  So far as is here relevant, those sections provide 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.

...

23.       The Court has the power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders ... as the Court thinks appropriate.

...

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.”

Section 78 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) provides:                 

“In every Court exercising federal jurisdiction the parties may appear personally or by such barristers or solicitors as by this Act or the laws and rules regulating the practice of those Courts respectively are permitted to appear therein.”

Section 85 of the Native Title Act provides:

“A party may appear in person or may be represented by a barrister, a solicitor or another person.”

It is important to note the definition of native title under the Native Title Act.  For present purposes such definition is contained in s 223(1) of the Native Title Act which is in the following terms:

“The expression ‘native title’ or ‘native title rights and interests’ means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)        the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)        the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)        the rights and interests are recognised by the common law of Australia.”

CONTENTIONS

The contentions put in opposition to the directions made by the trial judge which are the subject of this appeal (“the directions”) may be summarised as follows:

 (1)       The obligation of the Court in exercising the judicial power of the Commonwealth to afford procedural fairness to the parties means that it may never make an order or direction which would have the effect that-

(a)        a party is not adequately informed of all relevant evidence adverse to its interests;

(b)        that party is not in a practical sense at liberty to discredit any such evidence on the ground, amongst others, of inconsistency with other evidence;

(c)        that party is not in a practical sense entitled to obtain evidence in rebuttal of such evidence.

(2)        Section 78 of the Judiciary Act and s 85 of the Native Title Act -

(a)        give to a party to a proceeding under the Native Title Act a choice of counsel without regard to the sex of the counsel so chosen;

(b)        entitle a party to be “represented” which denotes complete representation in all aspects of the litigation;

(c)        contemplate representation by the one person in respect of all issues in the litigation.

(3)        Interference by the Court in the parties’ choice of legal representatives is inconsistent with the exercise of the judicial power of the Commonwealth under Chapter III of the Constitution and if any statutory provision of the Native Title Act or the Federal Court of Australia Act does on its face have the effect of authorising the directions such provision needs to be read down in accordance with the constitutional requirement.

(4)        The directions are so plainly unreasonable and unjust that the Court’s discretion must have miscarried.

The contentions put in support of the directions may be summarised as follows:

(1)        The Court by reason of its holding the necessary power to control its own proceedings and to prevent abuse of its process, has the power to make the directions; further by reason of the express provisions of the Federal Court Act set out above, the Court is empowered to make the directions.

(2)        Nothing in the Native Title Act or the Judiciary Act qualifies the usual powers of the Court to control its own proceedings.

(3)        In exercising such power the Court must act judicially in the interests of justice or to prevent prejudice to the administration of justice.

 (4)       There is no overriding constitutional right deriving from Chapter III of the Constitution, or elsewhere, for a party to be represented by a counsel of its choice or regardless of the sex of the particular counsel, in circumstances where the Court considers that a “gender restricted evidence order” should be made.

(5)        The decision of the trial judge as to how the proceeding should be conducted being a matter of discretion should not be lightly interfered with on appeal.

CONCLUSIONS

Chapter III of the Constitution

The Federal Court is a statutory court and derives its functions and powers from Commonwealth legislation.  It is to be accepted that it would be beyond the power of the Commonwealth Parliament to require, or indeed to allow, the Court to exercise the judicial power of the Commonwealth in a manner which is inconsistent with the essential requirements of a court or with the nature of judicial power (Polyukhovich v The Commonwealth (1991) 172 CLR 501 per Deane J at 607 and Gaudron J at 703-704; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 per Brennan, Deane and Dawson at 27).

However, what are to be identified as the essential requirements of a court, and what is to be understood as the essential nature of judicial power, will change as the society which the courts serve changes.  This has in recent years been expressly recognised by the High Court in the context of criminal trials.  In Dietrich v The Queen (1992) 177 CLR 292 at 328-329 Deane J observed:

“... a change in community perceptions or standards may lead, on reconsideration, to the modification or abandonment of rules or practices which were, in other times, seen as necessary to ensure that the trial of an accused was a fair one.

That is not to suggest that the determination of what is or is not necessary to satisfy the requirements of a fair trial is unprincipled.  While the requirement of fairness provides the ultimate rationale and touchstone for the law’s adjudgment of the minimum safeguards which must be observed in the administration of the substantive criminal law, the practical content of the requirement in a particular category of case will primarily fall to be determined by the staple process of legal reasoning, namely, induction and deduction from earlier decisions and settled rules and practices.  Inevitably, however, there will arise the rare case in which those processes of legal reasoning are inadequate in a developing area of the law or in which a court, ordinarily a final appellate court, concludes that circumstances are such that it is entitled and obliged to reassess some rule or practice in the context of  current social conditions, standards and demands and to change or reverse the direction of the development of the law.  It is in such a case that direct reference will necessarily be made to the underlying notion of fairness and that subjective values and perceptions may intrude into the judicial process.  Nonetheless, the identification or the reconsideration of the existence and content of the particular rule or practice in such a case is an unavoidable concomitant of the judicial function if the law is not to lose contact with the social needs which justify its existence and which it exists to serve.”

See also Cheatle v The Queen (1993) 177 CLR 541 at 560-561.

It was established in Mabo v The State of Queensland (No. 2) (1992) 175 CLR 1 that the common law of Australia recognises a form of native title to land.  The Native Title Act provides statutory recognition of such native title (s 10) and provides for a process by which native title rights can be established (s 13).  Such process may involve the Court in the hearing and determination of an application for a determination of native title in relation to particular land (s 74).  The present case is one in which such an application has been lodged with the Court for decision.    The consideration by the Court of the issues crucial to the establishment of native title will involve it in the taking of evidence as to -

(a)        the traditional laws acknowledged by certain indigenous Australians;

(b)        the traditional customs observed by certain indigenous Australians; and

(c)        the particular Aboriginal peoples or Torres Strait Islanders who by those laws and customs have a connection with the land or waters the subject of the application before the Court.

That is, the régime established by the Native Title Act provides for the recognition of a form of title to land which title is to be proved by reference to laws and customs of a particular segment of Australian society, namely that segment comprised of Aboriginal peoples and Torres Street Islanders.  This fact adds emphasis to the social need for the judicial power of the Commonwealth to be able to be exercised in a way which has regard to such laws and customs.

Section 82 of the Native Title Act may be thought expressly to recognise that the taking of some evidence relevant to a native title application without any deviation from the traditional processes of the Court may result in offence to the cultural and customary concerns of certain indigenous Australians or, alternatively, in relevant evidence which would otherwise be available being withheld from the Court for cultural or customary reasons.

The notion of what rules of practice may be seen as fundamental to a fair hearing is, as Deane J observed in Dietrich v The Queen, not fixed for all times.  Not does it require the peculiar circumstances of any litigation or class of litigation to be ignored. 

The law has in the past shown great flexibility in accommodating the needs of particular  types of cases whilst maintaining the interests of justice (see, for example, Scott v Scott [1913] AC 417; Australian Broadcasting Commission v Parish (1980) 43 FLR 129; Attorney General v Leveller Magazine Ltd [1979] 2 WLR 247; John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465; R v Vernell (1953) VLR 590).

I do not accept that the obligation of the Court in exercising the judicial power of the Commonwealth to afford procedural fairness to the parties means that it lacks altogether the power to place restrictions which reach the parties, their counsel and expert witnesses, upon the persons who may hear, read or otherwise know the details of particular aspects of the evidence to be called in a proceeding.  It was not sought to be argued before us that any such restrictions based on the sex of any person would offend the Sex Discrimination Act 1984 (Cth).

Discretionary Considerations

A finding that the Court has the power to impose restrictions on the persons who may hear, read or otherwise know the details of certain evidence called in a proceeding says nothing about when, if at all, in the circumstances of any particular case such power should be exercised.

For the Court to have regard, as a particular case may require, to the laws and customs of a particular group of indigenous Australians is not necessarily for the Court to regard itself as bound by such laws and customs.

Generally speaking the Court is obliged to exercise its jurisdiction in open court.  Section 17 of the Federal Court Act “gives statutory force to the principle that justice must be administered publicly in open court and gives recognition to the weight of public interest which attaches to that principle” (per Bowen CJ in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 232-233).  The powers of the Court to exclude the public or specified persons from a sitting of the Court, and to forbid or restrict the publication of particular evidence, is a power only to be exercised where the interests of justice so require (Federal Court Act ss 17 and 50).

Nonetheless, ss 17 and 50 of the Federal Court Act are a statutory recognition of the situation that rights and practices ordinarily regarded as necessary aspects of procedural fairness may in exceptional cases be required to give way to other and more compelling considerations to ensure that the interests of justice prevail.  The demands of the interests of justice in any particular case are to be identified by a process of weighing in the balance the competing interests arising from the nature of the exercise of judicial power generally and from the individual circumstances of that case.

That without a deviation from usual court practice a party would reasonably be deterred from seeking redress or the effective trial of a cause might be interfered with have been seen as valid grounds for a deviation from such usual practice (Scott v Scott).

This Court was not referred to any authority directly on the issue of the power of a court to place restrictions on the involvement of counsel in a case in which he or she is retained.  Whilst recognising that the circumstances which could justify such a restriction would be exceptional, I do not accept that the law has turned its face absolutely against the possibility of any such restriction.  I take the same view with respect to the power of the Court to restrict a party’s access to particular evidence called in a proceeding.  The true position seems to be as expressed by Tucker LJ in Russell v Duke of Norfolk (1949) 65 TLR 225 at 2231, quoted by Lord Evershed, with whom Lord Reid agreed, in Official Solicitor to the Supreme Court v K [1965] AC 201:

“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter under consideration, and so forth.”

It is, of course, only the applicants in this case who seek directions concerning the calling by them of “gender restricted” evidence.  There is no suggestion that the applicants and their counsel and experts will not have full access to all evidence to be called by the respondents.  Of course, there is no suggestion that the respondents will suffer any embarrassment in the presentation of their respective cases in the absence of special directions.  As Deane and Toohey JJ made clear in Leeth v The Commonwealth (1992) 174 CLR 455 the doctrine of equality under the law and before the courts is not infringed by laws which differentiate between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for differential treatment.  Indeed, in Gerhardy v Brown (1985) 159 CLR 70 at 129 “[f]ormal equality must yield on occasions to achieve ... ‘effective, genuine equality’”.  The Court is entitled, in my view, to approach the exercise of its power under ss 17 and 50 of the Federal Court Act on the same basis.

In my view, it is not possible to determine in the abstract that in no case could the Court be satisfied, for the purposes of the exercise of its discretion under s 17 of the Federal Court Act, that the interests of justice require that particular persons, who might include a party and that party’s retained counsel or expert, should be excluded from a sitting of the Court.  Nor in my view can it be determined in the abstract that in no case could the Court be satisfied, for the purposes of the exercise of its discretion under s 50 of the Federal Court Act, that in order to prevent prejudice to the administration of justice it would be appropriate to make an order restricting the publication of certain evidence to persons including a party and counsel or experts retained by a party.

However, in every case in which orders of this exceptional kind are sought, the Court will require to be satisfied that the statutory grounds which justify their making are established.  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 -

(a)        the interest in the open administration of justice;

(b)        the interest of the parties knowing of all evidence actually or potentially adverse to their respective interests;

(c)        the interest of the parties being able to test all evidence actually or potentially adverse to their respective interests;

(d)        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;

(e)        the interest of the parties being able freely to chose their own legal or other representatives;

(f)         the interest of ensuring that the parties are equally able to give, and lead from others, the evidence relevant to their respective cases;

(g)        the interest of the Court showing respect for legitimate cultural and other differences between persons involved in the legal process; and

(h)        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.

Nothing in the terms of the directions made in this case suggests to me that Lee J was not fully alert to the need to be satisfied on each particular occasion on which he is requested to make an order that the taking of evidence should occur in restricted circumstances that the interests of justice demand such an order.  It was, no doubt, for this reason that the directions require the giving of notice where such a direction is to be sought and allow the filing and serving of notices of objection.  It may be assumed that before determining any contested application for evidence to be taken in restricted circumstances, his Honour will hear the parties and any relevant evidence that they respectively wish to call on that application.  It is also to be assumed that his Honour will formulate any order that he might be satisfied should be made to impose the minimum restrictions consistent with the interests of justice.  It is to be noted that, whilst understandably seeking to provide assistance to the parties in their preparation for the hearing of the evidence by formulating model directions, his Honour has given to the parties liberty to apply at any time to seek modification of such directions.

Section 78 of the Judiciary Act and s 85 of the Native Title Act

Neither of the above sections, in my view, speaks to the circumstances of this case.  The right of the parties to be represented by barristers and solicitors is not challenged.  Nor has the Court sought to require the parties, or any of them, to retain particular legal representatives.

If s 78 of the Judiciary Act, properly construed, were to be seen as intended to ensure that a party to litigation in a court exercising federal jurisdiction could have counsel of its choice present in court during the entire hearing of a proceeding, and could have counsel of its choice aware of the details of all evidence in the proceeding, the section would, in my view, have been impliedly repealed in part by the later enactment of ss 17 and 50 of the Federal Court Act and s 82 of the Native Title Act.

Manifest Unreasonableness

The intended impact of the directions made by Lee J is discussed above.  I do not accept that, viewed in the way that I consider that they should be, they are plainly unreasonable and unjust.  Rather they reflect, in my view, a balanced attempt at achieving adequate notice to the parties of the need to prepare for the possibility of “gender restrictions” being imposed whilst maintaining flexibility as to whether, in the case of any particular application for such restrictions, such restrictions will be imposed, and if so, the forms of such restrictions.

Directions as Formulated

Hill J has identified possible ambiguity in the directions as formulated by the trial judge.  I see no objection to the amendments which he proposes for the purpose of removing any such ambiguity.  Subject to such amendments I agree with Hill J that the appeal should be dismissed.

I certify that that this and the preceding ten (10) pages are a true copy of the Reasons for judgment of the Honourable Justice Branson.

Associate:

Date: