FEDERAL COURT OF AUSTRALIA
Chapman v Luminis Pty Ltd [No 2] [2000] FCA 1010
Evidence – public interest immunity – exclusion of matters of State – public interest in protecting confidential and restricted Aboriginal knowledge – public interest in not denying access to relevant evidence in the administration of justice – Evidence Act 1995 (Cth), s 130
Constitutional Law – inconsistency – whether State law prohibiting the divulging of Aboriginal tradition in contravention of Aboriginal tradition inconsistent with the Commonwealth Evidence Act – Commonwealth Constitution s 109
Constitutional Law – whether laws of the Commonwealth otherwise provided – s 35 of the Aboriginal Heritage Act 1983 (SA) and Commonwealth Evidence Act – Judiciary Act 1903 (Cth), s 79
Constitution of Australia, ss 76(ii), 77, 109
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss 3, 9, 10, 28
Aboriginal Heritage Act 1983 (SA), ss 3, 35
Judiciary Act 1903 (Cth), ss 39B, 78B, 79
Evidence Act 1995 (Cth), ss 4, 8(1), 12, 48(4), 56(1), 130, 135, 142
Trade Practices Act 1974 (Cth), ss 52, 75B, 82, 86
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Hindmarsh Island Bridge Act 1997 (Cth)
Federal Court of Australia Act 1976 (Cth), ss 17(4), 19(1), 50
Tickner v Bropho (1993) 40 FCR 183 referred to
Tickner & Others v Chapman & Others (1995) 57 FCR 451 referred to
Chapman & Others v Tickner & Others (1995) 55 FCR 31 referred to
Wilson & Others v Minister for Aboriginal and Torres Strait Islander Affairs & Another (1996) 189 CLR 1 referred to
Kartinyeri and Another v The Commonwealth of Australia (1998) 195 CLR 337 referred to
Maks v Maks (1986) 6 NSWLR 34 distinguished
Mack v Lenton (1993) 32 NSWLR 259 distinguished
Northern Territory of Australia v GPAO (1999) 161 ALR 318 discussed
ALRM v State of South Australia and Stevens (No 3) (1995) 183 LSJS 111 referred to
Aboriginal Sacred Sites Protection Authority v Maurice; Re the Warumungu Land Claim (1986) 10 FCR 104 discussed
Eastman v The Queen (1997) 76 FCR 9 at 63 referred to
Young v Quin (1985) 4 FCR 483 referred to
Sankey v Whitlam (1978) 142 CLR 1 cited
Minister for Aboriginal Affairs v Western Australia & Others (1996) 67 FCR 40 referred to
Western Australia v Ward and Others (1997) 76 FCR 492 referred to
Victoria v The Commonwealth of Australia (1937) 58 CLR 618 referred to
P v P (1994) 120 ALR 545 discussed
G Bellamy and P Meibusch, Commonwealth Evidence Law, 2nd ed. at 21
The Laws of Australia, The Law Book Company at 16.7
Matter No. SG 33 of 1997
THOMAS LINCOLN CHAPMAN & WENDY JENNIFER CHAPMAN & BINALONG PTY LTD v LUMINIS PTY LTD, DEANE JOANNE FERGIE, CHERYL ANNE SAUNDERS, ROBERT EDWARD TICKNER & COMMONWEALTH OF AUSTRALIA
von DOUSSA J
ADELAIDE
28 JULY 2000
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IN THE FEDERAL COURT OF AUSTRALIA |
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SG 33 OF 1997 |
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BETWEEN: |
THOMAS LINCOLN CHAPMAN and WENDY JENNIFER CHAPMAN and BINALONG PTY LTD (Receivers and Managers Appointed) (In Liquidation) APPLICANTS
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AND: |
LUMINIS PTY LTD FIRST RESPONDENT
DEANE JOANNE FERGIE SECOND RESPONDENT
CHERYL ANNE SAUNDERS THIRD RESPONDENT
ROBERT EDWARD TICKNER FOURTH RESPONDENT
COMMONWEALTH OF AUSTRALIA FIFTH RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. Declare that s 35 of the Aboriginal Heritage Act 1983 (SA) does not apply to witnesses whilst giving evidence in the trial of this action.
2. In relation to the restricted women’s knowledge the subject of Appendices 2 and 3 to the report of the respondent Deane Joanne Fergie there will be no direction under s 130 of the Evidence Act 1995 (Cth) that information about the restricted women’s knowledge not be adduced as evidence.
3. Direct pursuant to ss 17(4) and 50 of the Federal Court of Australia Act 1976 (Cth) that evidence about the restricted women’s knowledge be adduced in camera in the presence of only one female legal practitioner representing each group of parties in the proceedings, and that the evidence received not be disseminated without further order of the Court.
4. Direct that insofar as it may become necessary to put information about the restricted women’s knowledge to the respondent Robert Edward Tickner in the course of his oral evidence the above directions will apply to that part of Mr Tickner’s evidence.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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SG 33 OF 1997 |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR EVIDENCE RULING
1 The stage has been reached in this long running trial where the second respondent Dr Deane Fergie, is giving evidence. Dr Fergie is an anthropologist. By her counsel Mr T R Anderson QC she contends that she should not be required to answer questions or produce notes or documents that would disclose, or tend to disclose, the contents of two envelopes which were attached to a report prepared by her in connection with an application under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the HPA) for a declaration preventing the construction of a proposed bridge to Hindmarsh Island in 1994. It is common knowledge that on 9 July 1994 the fourth respondent, Mr Tickner, the then Federal Minister for Aboriginal and Torres Strait Islander Affairs, made a declaration under s 10 of the HPA which had the effect of stopping the construction of the bridge for twenty-five years.
2 The two envelopes were marked “To be read by women only” (the secret envelopes). They were appended to an anthropological report prepared by Dr Fergie, and marked respectively Appendix 2 and Appendix 3. Dr Fergie’s report says that Appendix 2 records oral tradition, being knowledge restricted to some women, relating to Ngarrindjeri people who in pre-European times were in occupation of the lands and waters around Goolwa and Hindmarsh Island. Dr Fergie has given evidence that Appendix 2 contains a transcript of the oral tradition dictated to her by Dr Doreen Kartinyeri on 28 and 29 June 1994, and that Appendix 3 contains a preliminary anthropological assessment by her of that information.
3 Before entering the witness box Dr Fergie filed a supplementary affidavit which briefly refers to the circumstances in which she received the restricted knowledge, and says:
“In the circumstances, I am unable to disclose to this Court any information about the content of the restricted knowledge that was conveyed to me. I believe that any revelation of this information by me would:
· cause me to offend the customs and observances of Ngarrindjeri women;
· cause me to breach s 35 of the Aboriginal Heritage Act 1983 (SA);
· cause me to breach the relationship of trust and confidence I had and continue to have with my informants.”
4 The application for the s 10 declaration was made by the Aboriginal Legal Rights Movement Inc (ALRM) on behalf of the Lower Murray Aboriginal Heritage Committee (LMAHC) seeking protection of two sites adjacent to the bridge approach on the ground that the construction of the bridge would cause them injury or desecration. The LMAHC was representing the interests of the Ngarrindjeri people. A further request was made for a declaration by the ALRM on 12 April 1994 to protect an area encompassing the foreshores adjacent to the proposed bridge alignment at Goolwa and Hindmarsh Island together with the Goolwa channel which separated them.
5 Section 10 of the HPA provides:
“(1) Where the Minister:
(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;
(b) is satisfied:
(i) that the area is a significant Aboriginal area; and
(ii) that it is under threat of injury or desecration;
(c) has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and
(d) has considered such other matters as he thinks relevant;
he may make a declaration in relation to the area.
(2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.
(3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he shall:
(a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:
(i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;
(ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and
(iii) specifying an address to which such representations may be furnished; and
(b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.
(4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:
(a) the particular significance of the area to Aboriginals;
(b) the nature and extent of the threat of injury to, or desecration of, the area;
(c) the extent of the area that should be protected;
(d) the prohibitions and restrictions to be made with respect to the area;
(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);
(f) the duration of any declaration;
(g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;
(h) such other matters (if any) as are prescribed.”
6 For an area to qualify for protection under s 10 of the HPA it must be “a significant Aboriginal area”: s 10(1)(b)(i). Such an area is defined in s 3 of the HPA as an area of “particular significance to Aboriginals in accordance with Aboriginal tradition”. Section 3 also defines “Aboriginal tradition” to mean “the body and traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships”.
7 Mr Tickner first made an emergency declaration under s 9 of the HPA on 12 May 1994, and on 23 May 1994 nominated Professor Cheryl Saunders AO pursuant to s 10(1)(c) to make a report as required by s 10(4). Under s 10 the Minister must, before making a declaration in relation to a significant Aboriginal area personally consider the report and any representations attached to it: see Tickner v Bropho (1993) 40 FCR 183 and Tickner & Others v Chapman & Others (1995) 57 FCR 451.
8 Dr Fergie has given evidence that she was first instructed on 17 June 1994 by the ALRM to act as a facilitator at a proposed meeting between Ngarrindjeri women and Professor Saunders. In that role she attended a meeting with thirty-five Ngarrindjeri women at Graham’s Castle at Goolwa on 19 June 1994, and witnessed discussion between those women. Dr Kartinyeri was at that meeting, and conveyed information which she said related to Ngarrindjeri tradition to those present. Professor Saunders met with the same women the following day at Graham’s Castle, and later visited Hindmarsh Island and the Murray mouth with them. Dr Fergie was present for part of that time, and was also present that evening at a further meeting involving many of the Ngarrindjeri women and Professor Saunders. In the course of meetings at which she was present, Dr Fergie witnessed the Ngarrindjeri women authorising Dr Kartinyeri to provide restricted knowledge to Professor Saunders.
9 On 26 June 1994 Dr Fergie was requested by the ALRM to prepare an anthropological report to be forwarded as part of an ALRM representation to Professor Saunders. She agreed to do so. In a number of communications between Dr Fergie and Dr Kartinyeri on 29 and 30 June 1994 Dr Kartinyeri communicated information to Dr Fergie which is the subject of the secret envelopes.
10 Dr Fergie’s report was completed on the morning of 2 July 1994. A copy was couriered to Professor Saunders together with the secret envelope containing Appendix 2. Appendix 3 was prepared shortly afterwards and a copy faxed, in circumstances that ensured confidentiality, by Dr Fergie to Professor Saunders on 4 July 1994. Dr Fergie’s completed report, with Appendices 2 and 3 was delivered to ALRM, and was appended to a representation by ALRM to Mr Tickner.
11 In 1995 the sealed envelopes were returned to the ALRM and retained by them until delivered to Dr Kartinyeri in January 1996. Dr Kartinyeri has given evidence that she there upon destroyed the envelopes and all copies of their contents.
12 The contents of the secret envelopes have never been publicly disclosed, and are not known to any of the parties involved in this litigation apart from Dr Fergie and Professor Saunders. Dr Kartinyeri refused to reveal the restricted knowledge when giving evidence in this Court and no steps were taken to compel her to do so by the applicants. Counsel for the applicants sensibly chose not to force the issue with Dr Kartinyeri, but is now concerned to pursue the issue with Dr Fergie. Dr Fergie, in her report under the heading “The Particular Significance of the Localised Area in Ngarrindjeri Tradition” says:
“Even though the details of the secret oral tradition presented in Appendix 2 cannot be discussed here, their substance is clear. The area of the lower Murray, Hindmarsh and Mundoo Islands, the waters of the Goolwa Channel and Lake Alexandrina and the Murray Mouth are, in Ngarrindjeri womens sacred traditions, crucial for the reproduction of the Ngarrindjeri people and of the cosmos which supports their existence. The adequate functioning of this localised area is vital to Ngarrindjeri existence (see confidential Appendix 3).
As Doreen Kartinyeri has noted, this area is ‘the most important place for Aboriginal people of the lower south’.”
13 It is necessary at this point in the trial to rule on whether Dr Fergie is obliged to answer questions that would disclose the content of the restricted knowledge and the contents of the secret envelopes conveyed to her by Dr Kartinyeri. The ruling will however have wider application as the circumstances described below show that other witnesses to be called at the trial have received this information, and also other information said to be restricted information about Ngarrindjeri tradition (including information contained in “the Draper report” prepared by Dr Neale Draper, an archaeologist and anthropologist who in 1994 prepared a report for the State Minister for Aboriginal Affairs as to the cultural significance of the area around the proposed bridge site).
14 Evidence so far given in the trial, and witness statements that have been filed, show that Professor Saunders was in South Australia in the course of making inquiries for the purposes of her report, from 19 June 1994 to 24 June 1994. During that time she met with Dr Kartinyeri on two or three occasions in the absence of Dr Fergie and received the restricted knowledge. Her assistant Ms Anne Mullins was present on those occasions. It is proposed by the third, fourth and fifth respondents (Professor Saunders, Mr Tickner and the Commonwealth respectively who together are referred to as the Commonwealth respondents) to call Ms Mullins to give evidence.
15 Professor Saunders reported to the Minister on 7 July 1994. In the course of the conclusions to the report Professor Saunders says (at 38):
“The third aspect of significance claimed for them [the Ngarrindjeri people], however, is of a very different order. As described to me, Hindmarsh and Mundoo Islands and the waters surrounding them have a supreme spiritual and cultural significance for the Ngarrindjeri people, within the knowledge of Ngarrindjeri women, which concerns the lifeforce. If destroyed, the Ngarrindjeri people believe they will be destroyed. The area is, as Doreen Kartinyeri said, drawing an analogy with the significance of Uluru for the people of Central Australia, ‘the most important place for Aboriginal people of the lower south’.”
16 The s 10 declaration made on 9 July 1994 had the immediate effect of stopping the construction of the bridge. It is a matter of public record that the following major events then occurred:
· Mr T L Chapman and Mrs W J Chapman (who are applicants in the present proceedings) and another sought judicial review of Mr Tickner’s decision to grant the declaration, and of the report of Professor Saunders upon which it was based. On 15 February 1995 O’Loughlin J quashed both the declaration and the report: see Chapman & Others v Tickner & Others (1995) 55 FCR 316;
· Mr Tickner and Professor Saunders appealed against the decision of O’Loughlin J. The appeal was dismissed on 7 December 1995: see Tickner & Others v Chapman & Others (1995) 57 FCR 451;
· In late 1994 dissent emerged within the Ngarrindjeri community as to the existence of restricted women’s knowledge. Although the contents of the secret envelopes was not disclosed, some members of the Ngarrindjeri community denied that there was any secret “women’s business”. The dissentient group gathered support and that dissent moved into the public arena in about May 1995 and was widely canvassed in the media. On 16 June 1995 a Royal Commission was established by the Governor in Council for the State of South Australia to inquire into and report whether the “women’s business” more particularly described in the secret envelopes was a fabrication. The Royal Commissioner, Mrs I E Stevens, reported on 19 December 1995 that the whole of the “women’s business” was a fabrication. The Royal Commissioner reported that the purpose of the fabrication was to obtain a declaration under the HPA to prevent the construction of the bridge;
· On 19 December 1995 a further application under s 10 of the HPA was made to the Minister for Aboriginal Affairs by a group of Ngarrindjeri men and women. In response to a request from those applicants, the Prime Minister on 22 December 1995 designated Senator Rosemary Crowley to act on behalf of the Minister for Aboriginal Affairs for the strictly limited purpose of determining the application. On 16 January 1996 Senator Crowley nominated the Hon Justice Matthews to prepare the report required by s 10(1)(c) of the HPA. Her Honour delivered her report in June 1996. However, before she did so, members of the Ngarrindjeri community who contended that the alleged secret “women’s business” was a fabrication sought a declaration from the High Court of Australia that the nomination of Matthews J was incompatible with her commission as a judge of the Federal Court of Australia. On 6 September 1996 a majority of the High Court held that s 10(1)(c) of the HPA did not authorise the nomination of judges appointed under Chapter 3 of the Constitution: see Wilson & Others v Minister for Aboriginal and Torres Strait Islander Affairs & Another (1996) 189 CLR 1. In consequence the appointment of Matthews J was invalid;
· On 17 September 1996 the then Minister for Aboriginal Affairs, Senator Herron, announced that the Federal Government would introduce special legislation to prevent a further application under the HPA, and to authorise the construction of the bridge. Legislation to that effect was passed on 12 May 1997 and received Royal assent on 22 May 1997: see The Hindmarsh Island Bridge Act 1997 (Cth);
· This action was commenced on 23 May 1997;
· On 27 May 1997 Dr Kartinyeri and another commenced proceedings in the High Court of Australia seeking a declaration that the Hindmarsh Island Bridge Act was invalid. The High Court dismissed that challenge to the legislation on 1 April 1998: see Kartinyeri & Another v The Commonwealth of Australia (1998) 195 CLR 337;
17 The finding of the Royal Commission that the secret “women’s business” conveyed to Dr Fergie and Professor Saunders by Dr Kartinyeri was fabricated is propounded by the applicants in these proceedings, but denied by Dr Kartinyeri, and a number of Ngarrindjeri women who have given evidence in these proceedings. These women did not give evidence before the Royal Commission. The Royal Commission finding is challenged by the present respondents, and Dr Fergie proposes to call much evidence on the topic.
18 During early stages of the trial I was informed that the principal ground upon which Dr Fergie and other witnesses that were to be called by one or other of the respondents would contend that they should not be required to answer questions about restricted Ngarrindjeri tradition, including restricted women’s knowledge, was s 35 of the Aboriginal Heritage Act 1983 (SA) (the AHA). The AHA is an Act of the South Australian Parliament which, according to its long title, is an Act to provide for the protection and preservation of Aboriginal heritage. Section 35 is in Part 3 Division 5 of the AHA relating to PROTECTION OF TRADITIONS, and provides:
“Except as authorised or required by this Act, a person must not, in contravention of Aboriginal tradition, divulge information relating to –
(a) an Aboriginal site, object or remains; or
(b) Aboriginal tradition.
Penalty: $10,000 or imprisonment for 6 months.
(2) Such information may be divulged with the authority of the Minister.”
Aboriginal tradition is defined in s 3 of the AHA to mean:
“Traditions, observances, customs or beliefs of the people who inhabited Australia before European colonisation and includes traditions, observances, customs and beliefs that have evolved or developed from that tradition since European colonisation.”
19 The Court has been informed that the South Australian Minister responsible for the AHA has declined to give authority for the disclosure of information in the secret envelopes insofar as the disclosure would contravene s 35.
20 On 3 and 10 July 2000 the applicants gave notice to the several Attorneys-General of the Commonwealth, States and Territories of Australia under s 78B of the Judiciary Act 1903 (Cth) which identified Constitutional issues which the applicants contend arise as follows:
“(a) The Applicants say that, if s.35 of the Aboriginal Heritage Act (SA) operates to prevent the relevant Respondents from providing the information sought, whether for the purposes of the Court determining whether s.35 has relevant operation, or alternatively (assuming s.35 of the Aboriginal Heritage Act (SA) operates in respect of the information sought) for the purposes of the proper determination of issues in the action, its application impairs or detracts from the operation of one or more of the following Commonwealth laws:
(i) the Evidence Act
(ii) the Federal Court of Australia Act
(iii) the Federal Court Rules made under s 59 of the Federal Court of Australia Act and / or
(iv) the Trade Practices Act and in particular the remedies provided for in ss. 52 and 75B
(v) the Aboriginal and Torres Strait Islander Heritage Protection Act and in particular the remedy provided for in s.28
and, to that extent, s.35 is invalid by reason of s.109 of the Constitution.
(b) The Applicants say that, even assuming by reason of the nature of the information sought that s.35 of the Aboriginal Heritage Act (SA) applies to it, namely the information sought comprises Aboriginal heritage information which is confidential, then to the extent s.35 restricts the provision of such information for the purposes of, or in the course of, proceedings arising under the Aboriginal and Torres Strait Islander Heritage Protection Act, s.35 purports to regulate and apply to the same particular subject matter and protections as s.27 of the Aboriginal and Torres Strait Islander Heritage Protection Act, and s.35 is thus inconsistent therewith and to that extent invalid by reason of s.109 of the Constitution.
(c) The Applicants say that, even assuming by reason of the nature of the information sought that s.35 of the Aboriginal Heritage Act (SA) applies to it, namely the information sought comprises Aboriginal heritage information which is confidential, then to the extent s.35 restricts the provision of such information for the purposes of, or in the course of, proceedings in the Federal Court, s.35 purports to regulate and apply to the same particular subject matter and protections as s.50 of the Federal Court of Australia Act, and s.35 is thus inconsistent therewith and to that extent invalid by reason of s.109 of the Constitution.
(d) The Applicants say that, to the extent s.35 restricts the provision of particulars of such information for the purposes of, or in the course of, proceedings in the Federal Court, s.35 purports to regulate and apply to the same particular subject matter or set of rights, duties or procedures as ss.19,20,22,23 and 38 of the Federal Court of Australia Act and Order 12 of the Federal Court Rules made under s.59 of the Federal Court of Australia Act, and s.35 is thus inconsistent therewith and to that extent invalid by reason of s.109 of the Constitution.”
21 The Attorney-General for the Commonwealth has replied that as the Commonwealth is one of the respondents to the proceeding the Commonwealth Attorney-General will not be intervening. The other Attorneys-General have each advised that they will not be intervening in the proceedings in this Court.
22 However when the parties came to argue whether Dr Fergie should be required to give evidence about the restricted women’s knowledge given to her by Dr Kartinyeri, the grounds advanced on Dr Fergie’s behalf sought to avoid the Constitutional issues. Mr Anderson in substance advanced five arguments:
1. He contended that the questions directed to Dr Fergie sought secondary evidence of the contents of documents, and that the evidence did not establish that the original documents “were not available” within the meaning of s 48(4) of the Evidence Act 1995 (Cth). I reject this submission. Clause 5 of Part 2 of the Dictionary in the Evidence Act deals with the unavailability of documents. For the purposes of the Act a document is taken not to be available to the party if, among other things, it cannot be found after reasonable inquiry and search by the party (relevantly in this case the applicants), it was destroyed by another person, or it would be impracticable to produce the document or thing during the course of the proceeding. The evidence is clear that the original documents and copies that had been produced initially by Dr Fergie have been destroyed by Dr Kartinyeri. As a matter of probability (see s 142 of the Evidence Act) there are no other copies in existence. Counsel for Dr Fergie argues that there are other lines of inquiry which he suggested should have been pursued. However it is merely speculation that there might be another copy in the possession of some other Ngarrindjeri woman, and even if that were the case, the evidence suggests that it is unlikely in the extreme that the copy would be readily produced. In my opinion the applicants have established that if any copy still remains, it is not one that can be found by reasonable inquiry or search, or that it would be practicable to have it produced;
2. Mr Anderson contended that it is not appropriate for the applicants to raise this issue six months into the trial. It is argued that the applicants should have taken pre-action and pre-trial steps beyond those which they took to preserve the original documents, or to explore the possibility that copies still remain. In my opinion the arguments advanced on Dr Fergie’s behalf are without substance. The contents of the secret envelopes were destroyed by Dr Kartinyeri in January 1996. I do not think that the applicants could have been expected before that date to take action to preserve the documents. Once the proceedings started, the applicants pursued the normal avenues of discovery, and then a request for particulars. Perhaps the issue by them of a subpoena to the ALRM occurred late in the piece, but in my opinion that provides no reason for excluding relevant evidence, if otherwise admissible, from the trial;
3. Mr Anderson contended that in any event the information being sought from Dr Fergie could not assist in the resolution of issues raised in the pleadings, and indeed, that “this whole exercise” should be seen as a fishing expedition. This submission raises the question whether the information presently sought from Dr Fergie, and which is likely to be sought from Professor Saunders, her assistant Ms Mullins, and Ms Kee who read the secret envelopes in the course of advising Mr Tickner, is relevant to issues raised on the pleadings. This submission makes it necessary to briefly outline the issues between the parties.
23 Binalong Pty Ltd (Binalong) established a marina on Hindmarsh Island in the mid-1980s. In 1988 the company decided to significantly expand the marina, and ultimately obtained planning approval to do so in six stages. However, beyond the first stage the consent was conditional upon the construction of the bridge. It is for present purposes unnecessary to further recount the long history of the obstacles and delay which the construction of the bridge encountered. The delays caused or exacerbated financial difficulties suffered by Binalong, and on 8 April 1994 receivers were appointed by its financier Partnership Pacific Limited. The company went into liquidation on 8 August 1994. In these proceedings the applicants seek to enforce rights alleged to have accrued to Binalong in 1994 in consequence of the construction of the bridge being halted by the s 10 declaration.
24 Against the first and second respondents, Luminis Pty Ltd (Luminis) and Dr Fergie, it is alleged that Luminis was engaged by ALRM to provide consultancy services, and that Dr Fergie was appointed by Luminis as its agent for that purpose. Against Luminis, Dr Fergie and Professor Saunders it is alleged that they engaged in misleading and deceptive conduct in the preparation of their reports, and are liable for Binalong’s losses under s 82 of the Trade Practices Act 1974 (Cth) and corresponding provisions of the Fair Trading Acts of South Australia and Victoria. It is also alleged that Luminis and Dr Fergie were negligent in relation to preparation of the Fergie report, and that Professor Saunders was negligent in relation to the preparation of her report. It is alleged that Professor Saunders and Mr Tickner were guilty of a breach of statutory duty imposed by s 10 of the HPA, and that Mr Tickner was also guilty of negligence and misfeasance in public office. Against the Commonwealth a claim is made under s 51(xxxi) of the Constitution and s 28 of the HPA for reasonable compensation on the ground that the s 10 declaration constituted an acquisition of Binalong’s property, namely rights under the planning approval, and contractual rights to have the bridge constructed.
25 The applicants contend that information as to the contents of the secret envelopes and information regarding restricted women’s knowledge in Ngarrindjeri tradition is relevant to issues raised by their pleadings. In my opinion that submission is correct. The allegations of misleading and deceptive conduct pleaded against Luminis and Dr Fergie inevitably involve an assessment of whether the conclusions expressed by Dr Fergie were justified having regard to the information that was available to her. Her conclusions were, according to her report and her evidence, substantially based upon information recorded in Appendix 2 to her report. Knowledge of the contents of the secret envelopes is also relevant in the assessment of whether that information was recently fabricated, or whether it finds support from, and has some relationship with, other aspects of Ngarrindjeri history, culture and tradition about which evidence has been given.
26 Similarly, information as to the contents of the secret envelopes is relevant to an assessment of the justification for conclusions expressed by Professor Saunders in her report. It would also be relevant to learn from Professor Saunders and Ms Mullins what information Professor Saunders received first hand from Dr Kartinyeri, to assess whether she based her conclusion upon her own inquiries, or whether her conclusions were based upon representations conveyed by the Fergie report, including the information in the secret envelopes. Professor Saunders in her defence pleads that she based her report on information which she received directly from informants, and not on Dr Fergie’s report, but that assertion does not necessarily answer the case pleaded against Dr Fergie. If Dr Fergie, upon the information base available to her should have reported that the oral tradition related to her by Dr Kartinyeri was on anthropological grounds suspect or unlikely to be true, such an opinion could have altered Professor Saunders’ opinion.
27 In the case of Mr Tickner, he did not read the secret envelopes (although his assistant Ms Kee did so). It is alleged against him that his failure to do so constituted negligence, breach of statutory duty, and a misfeasance in public office. The causes of action based upon those allegations require the applicants to prove that the acts complained of caused the loss and damage alleged by them. It is therefore relevant to inquire whether, if the representations, including the secret envelopes, had been read by Mr Tickner, his decision to make a s 10 declaration would have been any different.
28 I hold that the evidence which Dr Fergie does not wish to give is relevant evidence. Similarly, questions which will be directed by the applicants’ counsel to Professor Saunders, Ms Mullins and Ms Kee about the restricted women’s knowledge, and the contents of the secret envelopes will seek to elicit evidence relevant to issues raised by the pleadings.
4. Next, Mr Anderson contended that evidence already given by Dr Fergie indicates that she has an incomplete, unreliable and unsafe recollection of events which occurred in 1994, and in these circumstances secondary evidence of the contents of the secret envelopes should not be accepted from her as it is not of a sufficient order of reliability, and, further, the evidence should in any event be excluded in exercise of the discretionary power in s 135 of the Evidence Act to exclude evidence which might be unfairly prejudicial to a party or be misleading or confusing.
29 In support of the first limb of this argument reliance was placed on Maks v Maks (1986) 6 NSWLR 34 and Mack v Lenton (1993) 32 NSWLR 259. In the first of these cases it was sought to lead oral secondary evidence as to the contents of a lost document said to evidence a declaration of trust by the defendant in favour of the plaintiff in respect of a half interest in a house property. In the second case it was sought to lead oral evidence of the contents of a lost deed. In both cases the court held that secondary evidence should not be received unless the oral evidence was clear and satisfactory as to the contents of the documents. However in each of those cases, the court was concerned with terms which delineated property rights. In cases of that type the need for clear evidence as to the terms stated in the lost document is obvious. In Mack v Lenton, Young J referred to American authority which instructs that the degree on which the court will require there to be certainty of the reconstruction will to a great extent differ, depending on what is the document and what is the purpose of its admission. However where property disputes were in question his Honour accepted that, at least in specific performance proceedings, clear and satisfactory evidence of the contents of the lost document was necessary.
30 In my opinion those cases are distinguishable, as in this case precise recollection of the words used in the lost document is not essential. Even a recollection of topics would assist in the resolution of the issues involved. Poor memory as to the detail of information given in relation to topics would go to weight, and it may be, at the end of the day, that no weight could be given to the recollection of Dr Fergie. However, in advance of receiving evidence from her it is not possible to tell whether she has any memory at all of the contents, and if so, whether that memory is entitled to weight. Quite apart from questions that may be directed to Dr Fergie as to the contents of Appendix 2, in my opinion the secondary evidence rule does not apply insofar as Dr Fergie is asked to recount what was said to her by Dr Kartinyeri. The conversation between the two witnesses is otherwise admissible. If Dr Fergie’s recollections of the conversations are poor, then her evidence about those conversations will be evaluated in the same way as evidence as to events based on faulty recollection given by any other witness will be assessed.
31 As to the second limb of the argument under s 135, there is always a risk that the oral evidence of a witness with a faulty recollection will be misleading or confusing, or that the imperfect recollection of the witness may lead to a misinterpretation or wrong conclusion about the fact in issue. That however is not normally a ground for rejecting the evidence of a witness in a civil case. The usual course is to accept the evidence, and if the court is of the opinion that at the end of the day it is not entitled to weight, the evidence is put to one side. This is not to deny that the power to exclude evidence exists under s 135, and an exceptional case might arise where the probative value of evidence sought to be led is minimal, and outweighed by one or other of the dangers specified in s 135. Even if Dr Fergie were merely appearing in the case as a witness, I consider that evidence as to the content of the restricted women’s knowledge is of sufficient importance that the balancing exercise required under s 135 would result in the admission of the evidence. Dr Fergie however is not merely a witness. She is a party to the proceedings, and the evidence sought from her goes to central issues in the case against her. In my opinion that is an important consideration in favour of the admission of the evidence.
32 Mr Anderson has argued that if Dr Fergie is required to give evidence about the restricted women’s knowledge, it should in the first instance be received on the voire dire, so that the application under s 135 can be reconsidered in the knowledge of the evidence that she is able to give. On reflection I think that such a course is not appropriate and would only serve to further prolong and complicate the trial. Insofar as Dr Fergie may give evidence that her recollection has deserted her or is faulty about the restricted women’s knowledge, that is a matter to be taken into account in the general assessment of the weight and reliability to be accorded to her evidence on other topics about which she claims memory, and should form part of the trial evidence.
5. Finally, Mr Anderson contended that quite apart from the “strict position” which Dr Fergie asserts exists under s 35 of the AHA, the evidence proposed to be led from her should be excluded under s 130 of the Evidence Act on the ground of public interest immunity, or as s 130 now describes the ground, as evidence of a matter of state. Section 130 relevantly provides:
“(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
…
(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:
…
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:
(a) the importance of the information or the document in the proceeding;
…
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e) whether the substance of the information or document has already been published;
…”
Counsel submits that the oral evidence already led, and witness statements filed, show the confidential nature of the relationship between Dr Kartinyeri on behalf of the Ngarrindjeri women, Dr Fergie and a tradition of restricted disclosure, and that the disclosure by Dr Fergie (or by other witnesses) of the restricted women’s knowledge would prejudice the proper functioning of the Government, and in particular the protection of Aboriginal culture and heritage in the manner intended by the HPA. To that submission could be added the risk of prejudice to the functioning of Government of the State of South Australia in respect of the protection of Aboriginal sites, culture and tradition in South Australia.
33 Counsel for the Commonwealth respondents also contends that evidence as to the restricted women’s knowledge, the subject of Appendix 2, should be excluded on the ground that it relates to matters of state.
34 Written submissions filed in advance of oral argument by counsel for the applicants agitates the Constitutional issues outlined in the s 78B notices. Those submissions make particular reference to Northern Territory of Australia v GPAO (1999) 161 ALR 318. However in light of the approach taken in oral argument by counsel for Dr Fergie, Ms Shaw QC, counsel for the applicants, concentrated her oral argument on matters of evidence and law raised by the respondents’ arguments.
35 Both under s 35 of the AHA, and s 130 of the Evidence Act it is necessary to consider whether the divulging of the restricted women’s knowledge would be contrary to Aboriginal tradition.
36 Section 35 prohibits, without the authority of the Minister, the divulging of information relating to Aboriginal tradition, in contravention of Aboriginal tradition. Two separate questions arise under the section, first whether the information sought to be divulged is information relating to Aboriginal tradition, and secondly whether to divulge that information would be contrary to Aboriginal tradition. The present case is, perhaps, extraordinary in that a Royal Commissioner appointed by the State of South Australia has reported that the information sought by the applicants does not relate to a genuine Aboriginal tradition, but to a fabricated story. That finding is very much in dispute in these proceedings. Without knowing the detail of the alleged Aboriginal tradition the Court is obviously at a considerable disadvantage in forming a view on that topic. Whilst the Royal Commissioner, on information which differs substantially from that before this Court reached such a conclusion, the conclusion is of no evidentiary force in these proceedings. The evidence presently before the Court does not justify even on a provisional basis, a finding on the topic. In my opinion therefore the Court should approach the present question upon the footing that the information sought about restricted women’s knowledge is, or at least might be, about Aboriginal tradition of the kind which the Act seeks to protect from disclosure.
37 The question whether disclosure is contrary to Aboriginal tradition in many cases may be a question that is also difficult to decide without knowing the subject matter and content of the Aboriginal tradition about which information is sought. This raises an interesting question whether, in a case governed by s 35 of the AHA, the Act is to be construed in a manner which would permit a court to be informed of the tradition before ruling whether a witness should be obliged to give evidence about it in Court proceedings. However this is not such a case as it has not been suggested by Dr Kartinyeri, by Dr Fergie or otherwise that it is necessary to know the restricted women’s knowledge to determine whether it would be contrary to Aboriginal tradition to divulge it.
38 The alleged Constitutional issues foreshadowed by the applicants will arise only if the information sought to be divulged is contrary to Aboriginal tradition. If not, s 35 has no application, and no question of inconsistency will arise.
39 In the present case there is information from a number of sources as to restriction said to arise under Aboriginal tradition in respect of the alleged restricted women’s knowledge disclosed by Dr Kartinyeri. The parties have indicated that they do not wish to adduce any further evidence in relation to Aboriginal tradition that might restrict the disclosure of that knowledge. Dr Kartinyeri’s evidence indicates that she was a custodian of the particular knowledge, and the evidence does not suggest that anyone else in the Ngarrindjeri community would be able to offer better evidence than she has done about restrictions imposed on its disclosure.
40 On the information available I hold that Aboriginal tradition confines the disclosure of the restricted women’s knowledge (and related restricted knowledge possessed by other Ngarrindjeri women) to Ngarrindjeri women, chosen by those who possess the knowledge as appropriate to be trusted with it. However that restriction is not exhaustive. In situations judged appropriate by those who hold the knowledge, the knowledge may be disclosed to others including, in an exceptional case, to a non-Aboriginal male person with a special interest to receive it. The outer limits of circumstances that may be judged appropriate for disclosure are not revealed by the available information, but permitted circumstances include disclosure authorised by Ngarrindjeri women who the custodian or custodians of the information respect as Elders in the Ngarrindjeri community, where the disclosure is for the purpose of protecting that tradition or other Ngarrindjeri traditions. Disclosure in these circumstances should only be to the extent necessary to achieve the protection sought. Such a disclosure may be made even though it may result in the restricted women’s knowledge being revealed to a particular man. In such a case the particular man is treated as having been granted permission in accordance with the Aboriginal tradition to receive the restricted knowledge.
41 The following pieces of evidence I think support and illustrate these conclusions. The written outline of submissions by Dr Fergie refers to more than ninety other pieces of evidence which I consider are also generally supportive of these conclusions.
42 Dr Kartinyeri maintains that she was told the restricted women’s knowledge by her Auntie Rosie who passed it to her saying that the information was not to be told to men, in particular to white men. However, she has said that she was not told not to tell a white woman. On that basis Dr Kartinyeri considered it was in order to relate the information to Dr Fergie, Professor Saunders, and other white women assisting Professor Saunders and Mr Tickner.
43 Although Dr Kartinyeri did not consider it contrary to Aboriginal tradition to disclose the knowledge to the white women concerned with the preparation of the report for the purposes of the s 10 application, elsewhere in her evidence she indicated that the knowledge was not to be generally disseminated to all women. On the contrary, she said that the knowledge was only to be made available to Ngarrindjeri women selected by the custodian or custodians of the information as women who could be trusted with it. For that reason Dr Kartinyeri refused requests in late 1994 and 1995 to reveal the contents of the secret envelopes to a number of other Ngarrindjeri women.
44 In March 1995 the secret envelopes were in error delivered to Mr Ian McLachlan MP, the then opposition shadow Minister for the Environment in Parliament House, Canberra. Dr Kartinyeri publicly expressed outrage that a man should have gained access to the documents. Dr Kartinyeri referred to this incident in the course of being questioned about whether she would reveal what was in the secret envelopes to this Court. The following exchange occurred between her and the applicants’ counsel:
“What I’m asking you is, as I understand it, that you are saying that you won’t tell us in this Court what is in those secret envelopes because it’s against your tradition, your law to do so?---Well it is against our tradition and our law, our culture, but we didn’t give Ian McLachlan permission to read those things. It was done in a devious way, as far as I was concerned at the particular time, and I feel I’ve revealed as much – in fact more than I really should have in all this, and I’ve sort of lived to regret it, and I’m still going through this trauma, and I’ve been feeling very strong about my culture and my tradition all through my life, and for some reason I feel now that one man took that away from me…”
This answer suggests that Dr Kartinyeri did not consider there to be an absolute prohibition in all circumstances against disclosing the knowledge to a man, but, rather, tradition permitted in appropriate circumstances permission being given even for a white man to receive the knowledge.
45 This interpretation is also in accordance with other evidence given by Dr Kartinyeri as to the assurances which she sought before allowing the information to be transmitted to Professor Saunders as exhibits to Dr Fergie’s report marked “To be read by women only”, and in turn to the Minister. Dr Kartinyeri says that in conversation with Dr Fergie and Professor Saunders she asked for a guarantee that the secret envelopes would not be revealed to a man. She says they assured her that they would do everything they could to see that no man read the envelopes, but it is clear from her evidence that she realised that an absolute guarantee was not being offered and that the possibility that Mr Tickner might read them existed.
46 In her witness statement Dr Kartinyeri says about Professor Saunders’ participation at the Graham’s Castle meeting:
“10.10 Professor Saunders introduced herself and explained to us what her role in the Inquiry was and how she was preparing a report. She said that the things that we said would be written down and given to Minister Tickner in a Report.
…
10.16 I was happy that Professor Saunders was a woman and that Tickner had women advisers – we could therefore tell them some of the information and they could tell Tickner.”
47 More general information about traditional rules in relation to the disclosure of gender restricted information appears in a submission prepared by the ARLM and lodged with Professor Saunders on about 10 June 1994. That submission included the following passages:
“Because of the culturally sensitive nature of the traditions that relate to the Goolwa channel and surrounding waters it is more appropriate that this tradition be conveyed to you by Ngarrindjeri women themselves, ideally with the assistance of an appropriately qualified anthropologist. The women have insisted that that person must be a woman as it is, generally speaking, contrary to their tradition to disclose the details to men …
Even at this stage [December 1993] the significance of the area to Ngarrindjeri women, had not been revealed, no doubt due to Aboriginal tradition.
Ngarrindjeri men (members of LMAHC), however were being told by their wives about the significance of ‘the waters’. The men in vague and embarrassed fashion began talking to Dr Draper about their significance, and at least hinted at the importance of the area to Ngarrindjeri women.
By mid-April after trust had been established it was made clear that the women’s cultural knowledge was at the heart of the Aboriginal tradition being threatened by the bridge construction.
With the aid of Dr Draper’s wife Rose Arnold, who was on the survey as an archaeologist in her own right, Sarah Milera was able to convey to him, more detailed information about the significance of the waters, and in particular the Goolwa channel. This form of communication and transmission of women’s business to men is traditionally acceptable …
His [Dr Draper’s] report tells as much as he is able to given the nature of the culturally sensitive information with which he was entrusted to reveal without ‘going too far’ in a cultural sense.” (emphasis added)
48 Notwithstanding Auntie Rosie’s admonition not to tell white men, the evidence shows that Aboriginal tradition did not absolutely prohibit such a disclosure. Evidence as to events at Graham’s Castle on 19 and 20 June 1994, and as to the conduct of an acknowledged Ngarrindjeri Elder, Mrs Connie Roberts first at the meetings and later in offering to assist Dr Fergie, shows that Aboriginal tradition permits an exception, as I am satisfied that those present at Graham’s Castle well understood that the information being revealed by them might come into the hands of Mr Tickner, being the Minister who had to make the decision.
49 In my opinion the evidence establishes that the disclosure of the restricted women’s knowledge to white women involved in the reporting process was in accordance with Aboriginal tradition, and Aboriginal tradition permitted the knowledge to go to Mr Tickner for the purpose of his consideration of the s 10 application.
50 A recognition that in exceptional circumstances permission might be accorded to a white male person to receive the restricted women’s knowledge and that disclosure may occur to white women who are intended to be the conduit of that knowledge does not mean that Aboriginal tradition thereafter ceases to protect the knowledge, or that the knowledge may thereafter be disclosed to other white men besides Mr Tickner. The implicit permission given for Mr Tickner to receive the information was, on the evidence, confined to Mr Tickner alone as he was the Minister responsible for making the decision. Disclosure by Dr Fergie now to other men, including male barristers and a male judge of this Court, would be outside that permission, and contrary to Aboriginal tradition. Disclosure to these people would not further the protection of an Aboriginal tradition, and is outside the purposes for which Dr Kartinyeri made the disclosure in the first instance.
51 Section 35 of the AHA provides that a person must not, in contravention of Aboriginal tradition divulge information relating to an Aboriginal tradition. Counsel for the applicants contends that as the restricted women’s knowledge has already been given to Dr Fergie, Professor Saunders, Ms Mullins and Ms Kee it has been “divulged” and that a repetition of the information by them would not be in contravention of the section. It is argued that s 35 does not apply to information not being revealed for the first time which is in the public domain. Reference is made to the dictionary definition of “divulge”. The New Shorter Oxford English Dictionary defines the word to mean “To make publicly known; to publish. To declare or tell openly something private or secret; to disclose, reveal. To make common, impart generally.” The Macquarie Dictionary (3rd) gives the meaning as “to disclose or reveal (something private, secret, or previously unknown)”. If the restricted women’s knowledge was already in the public domain, I think there would be merit in this argument, a view tentatively taken by Matheson J in ALRM v State of South Australia and Stevens (No 3) (1995) 183 LSJS 111. However the knowledge is not presently in the public domain. On the contrary, it has remained secret knowledge, carefully concealed from all but a few chosen confidantes, and then for a very specific purpose.
52 It follows from what I have said, that I consider that if s 35 of the AHA has application to a witness giving evidence in these proceedings, it would prohibit the witness divulging information about the restricted women’s knowledge without the consent of the custodians of the knowledge. That consent is not forthcoming.
53 In my opinion it is not possible to resolve Dr Fergie’s claim to privilege by the practical expedient suggested by her counsel. If evidence of the kind sought to be led from Dr Fergie was in a class which attracted absolute immunity from disclosure on the ground of public interest immunity, that course would be open. However the authority relied upon by Mr Anderson and counsel for the Commonwealth respondents, Aboriginal Sacred Sites Protection Authority v Maurice; Re the Warumungu Land Claim (1986) 10 FCR 104 does not support that position: see Bowen CJ at 109-110, Woodward J at 114-115, and Toohey J at 129-131. On the contrary, the Full Court held that the Aboriginal tradition relating to a sacred site in question in that case was not to be excluded from evidence. The Court upheld the view of the Aboriginal Land Commissioner that the public interest required the receipt of the evidence, subject to stringent restrictions which limited the disclosure to a small group of people with a direct interest in the determination of the subject land claim.
54 Maurice was decided on common law principles. Section 130 of the Evidence Act closely reflects the common law position: see Eastman v The Queen (1997) 76 FCR 9 at 63, and the Laws of Australia, (The Law Book Company) 16.7 [5]. In my opinion the principles discussed in Maurice have application in the present instance where the claim for immunity is made under s 130.
55 It is clear from the terms of s 130(1) that the section may apply to exclude oral evidence as well as documentary evidence, which also reflects the common law position: see Young v Quin (1985) 4 FCR 483 at 485 and Sankey v Whitlam (1978) 142 CLR 1 at 38.
56 Although in Maurice the Court held that the confidential information relating to Aboriginal tradition was not of a class that attracted a general immunity, the Court held that having regard to the nature of the particular evidence concerned there was an aspect of public interest in the protection of the confidentiality which the Court was required to balance against the public interest that the proper administration of justice requires that relevant evidence should be freely available to courts and tribunals. Each of the members of the Court applied the principles enunciated by Gibbs ACJ in Sankey v Whitlam at 38-39. Gibbs ACJ there said:
“The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [1968] AC at p 940, as follows:
‘There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.’
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies.”
57 The information relating to sacred sites which was sought to be adduced in Maurice had been obtained from the Aboriginal custodians under an assurance that the information would be kept confidential: see Toohey J at 121-122. To be able to perform its statutory functions, the Sacred Sites Authority needed to be able to offer that guarantee of confidentiality to the Aboriginal suppliers of information, and if confidentiality could not reasonably be expected by them, sources of information were likely to decrease or dry up. Moreover the public disclosure of the information could result in the suppliers of information being held accountable by other Aboriginals. This would be inimical to the public interest object of providing proper protection and respect for the rights and beliefs of the Aboriginal people of Australia: see Bowen CJ at 110 and Woodward J at 114. Against these aspects of public interest which favoured the exclusion of the evidence, it was necessary to weigh the public interest in the proper administration of justice which requires that evidence necessary to elucidate the true facts should be available. However as members of the Full Court in Maurice observed, such availability does not necessarily require disclosure to the public at large, or even to all those participating in the proceedings of a court or tribunal: see Woodward J at 115 and Toohey J at 119, 130. The Aboriginal Land Commissioner had proposed that the evidence be received in camera, that only the Commissioner, his associate, counsel assisting, counsel for the Attorney-General for the Northern Territory and possibly his consultant anthropologist and the researcher who gathered the material would be present, and that use of information learned in the process would not be permitted other than for the purpose of the land claim. The Court observed that these restrictions went a long way towards reducing the strength of the public interest argument against disclosure: see Woodward J at 115 and Toohey J at 130-131. The Court held that the Aboriginal Land Commissioner had not erred in the balancing exercise required between the competing public interests in ruling that the confidential information should be received subject to those restrictions.
58 In the present case the restricted women’s knowledge was voluntarily revealed by Dr Kartinyeri with the intention that it be transmitted to Professor Saunders as the reporter under the HPA, and in turn to the responsible Minister whose favourable declaration was being sought for the preservation and protection of a significant Aboriginal area from injury or desecration. The power of the Minister to make a declaration to achieve that end is subject to the requirements of the HPA, and to Australian law generally. Disclosure of restricted Aboriginal tradition to an extent necessary to establish the significance of an Aboriginal area is a necessary prerequisite to the exercise of the Minister’s power. The HPA requires that the information be disclosed first to a reporter whose function it is to gather and provide the Minister with comprehensive information in respect of both sides of the issue to enable the Minister to make an informed decision, and then to the Minister who personally must consider the report and any representations attached to it. It is a further requirement of the law that before the reporter makes a declaration that will adversely affect interests of the State or Territory in which the area is located, and property interests of individuals, the reporter shall accord procedural fairness to the holders of those interests. It has been held that procedural fairness requires that those interest holders be afforded the opportunity to contradict or comment upon issues raised before the reporter which have the potential to influence the Minister’s decision: see Minister for Aboriginal Affairs v Western Australia & Others (1996) 67 FCR 40 at 53-54. Procedural fairness might not require disclosure of confidential information in all its details, but will require the disclosure of sufficient information to enable answer to be made to the issues raised.
59 The decision of the Minister is one that is subject to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903. Those provisions vest jurisdiction in the Federal Court of Australia. Information supplied to the reporter therefore has the potential to come to the attention of judges of the Federal Court of Australia. This is so whether the confidential information is gender restricted or not.
60 In the case of gender restricted tradition, it is open to the Prime Minister to appoint for the purpose of the application a Minister of the appropriate sex to receive the information and decide the application: Tickner & Others v Chapman & Others (1995) 57 FCR 451 per Burchett J at 479. However if judicial review is sought, the parties to the proceedings in the Federal Court must take the judge as they find him or her. As Hill and Sundberg JJ accepted in Western Australia v Ward and Others (1997) 76 FCR 492 at 496:
“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 that judicial power of the Commonwealth, irrespective of gender, race or religion. That much may be accepted.”
Thus, in the context of s 130(5)(e) of the Evidence Act, there will be a publication of the information supplied in connection with an application for declaration under s 10, at least to the reporter, to the Minister, and (in substance at least) to those parties whose interests will be directly and adversely affected. Moreover the publication will occur in circumstances where the law envisages that further publication may be required in judicial review proceedings.
61 Whilst the present proceedings are not by way of judicial review of the decisions of Professor Saunders and the Minister, the applicants do seek to investigate the legal propriety of the process that led to the making of the s 10 declaration. For reasons given above, disclosure in these proceedings of the restricted women’s knowledge is relevant to the resolution of the issues raised between the parties. The evidence sought is not only relevant, but important to establish the factual base upon which those issues must be resolved. Section 130(5)(a) and (c) requires the Court to take into account those considerations which in this case favour disclosure. Section 130(5)(d) requires the Court to consider the likely effect of adducing the evidence, and the means available to limit its publication. The likely effect of adducing the evidence is to cause affront and distress to those Ngarrindjeri women who are proponents of the existence of the restricted women’s knowledge. However, unlike the situation presented in Maurice, I consider it is unlikely that the disclosure would have the effect of deterring other Aboriginal people from seeking protection of Aboriginal heritage under the HPA. Applicants otherwise prepared to seek the benefit of a declaration by the Minister under the HPA would have to make disclosure of confidential tradition to the extent discussed above. I do not consider that the added risk that further disclosure may occur in collateral proceedings which challenges the propriety of the making of a declaration would add a further significant deterrent to those who might qualify for the benefit of the HPA.
62 As to the means available to limit the publication of the information, Western Australia v Ward illustrates the extent of the powers of the Court to restrict those persons to whom the knowledge would be revealed. The Court in the present case happens to be constituted at first instance by a male judge and there is nothing that can be done about that. However it is within the power of the Court to direct that the evidence to be given by Dr Fergie, and the other witnesses who may possess the knowledge, be given in camera, in the presence of a limited class of persons, and subject to an order that the evidence not be disseminated other than to a defined class of persons.
63 In my opinion for the purpose of the discretion under s 130 of the Evidence Act it should be held that the public interest in admitting into evidence the restricted women’s knowledge is not outweighed by the public interest in preserving its confidentiality, subject however to there being directions which require that the evidence be received in camera, with each of the parties represented by one female legal practitioner, and that the evidence not be further disseminated without order of the Court. When the evidence has been received, and the nature and degree of sensitivity of it can be better evaluated, a decision can be made whether there should be some further slight relaxation of the order, for example by allowing the publication of the evidence to one female anthropologist instructed by each of the groups of parties represented in the proceedings. I am not satisfied at this stage in the trial that it is necessary to allow each party to have an anthropologist in Court to hear evidence adduced about the restricted women’s business. The primary importance of the evidence is to learn, so far as it is possible to do so at this time, the subject matter of the knowledge to gauge how that knowledge may have influenced the opinions of Dr Fergie and Professor Saunders and the decision of Mr Tickner.
64 The interests of justice may also require that the gist of the evidence, though not all the detail, be made known to one male counsel for each party. This may be necessary as the respondents have so far been represented in the proceedings by senior and junior counsel who are male.
65 The Commonwealth respondents advanced as a reason against adducing evidence about the restricted women’s knowledge the fact that it would be necessary, if the evidence were received, to put it to Mr Tickner as it would be directly relevant to the question of causation. It was argued that this would amount to a publication contrary to Aboriginal tradition of the knowledge to a white man. It follows from what I have already said regarding the Aboriginal tradition which controls the disclosure of the restricted women’s knowledge, that the disclosure made to Dr Fergie was made with the knowledge that it might be disclosed to Mr Tickner. As subsequent decisions of the Full Court demonstrate, it should have been disclosed to Mr Tickner in 1994. In these circumstances the fact that the information might belatedly be put to him is not a reason that alters the balance of public interest such that a direction should be given that information about the restricted women’s knowledge should not be adduced as evidence.
66 As I consider that the application of s 130 of the Evidence Act would require the disclosure, on the above conditions, of the restricted women’s knowledge, the question remains, and cannot be avoided, whether s 35 of the AHA applies so as to effectively prohibit any such disclosure.
67 In Northern Territory of Australia v GPAO it was argued that s 97(3) of the Community Welfare Act 1983 (NT) was inconsistent with the Commonwealth Evidence Act, and inoperative to the extent of that inconsistency. Section 97(3) provided:
“A person who is, or has been, an authorised person shall not, except for the purposes of this Act, be required to – (a) produce in a court a document that has come into his possession or under his control; …”
In Family Court proceedings a subpoena was served on an “authorised person” within the meaning of s 97(3). The question was whether that person was obliged to comply with the subpoena. The High Court by majority held that s 97(3) was not inconsistent with the Evidence Act as the Evidence Act was concerned with the adducing of evidence, not with pre-trial procedures. Gleeson CJ and Gummow J at 323-324 [16] said:
“The Evidence Act applies to proceedings in the Family Court, as a court created by the parliament which is not the Supreme Court of a Territory. This is the effect of s 4(1) of the Evidence Act and the definition in the Dictionary of ‘federal court’. However, the Evidence Act is concerned with the adducing of evidence (Ch 2), the admissibility of evidence (Ch 3), proof (Ch 4) and certain ancillary matters (Ch 5). It does not deal with the obligations of a party to whom an order in the nature of a subpoena is addressed to produce documents to the court in question. Nor does the Evidence Act deal with the grant of leave by the court to inspect or otherwise make use of documents which have been produced in answer to a subpoena.”
68 Gaudron Jat 352 [135], McHughandCallinanJJ at 371 [199], and HayneJat387 [254] agreed on this point with Gleeson CJ and Gummow J respectively.
69 In the present case it is sought to raise s 35 of the AHA as a ground that prevents the adducing of evidence at trial which is the very field in which the Evidence Act operates.
70 Section 4 in Part 1 of the Evidence Act provides that the Act applies in relation to all proceedings in a federal court. The Federal Court of Australia is such a court.
71 Section 8(1) provides:
“This Act does not affect the operation of the provisions of any other Act, other than s 68, 79 and 80 and 80A of the Judiciary Act 1903.”
72 In this subsection “any other Act” refers to any other Commonwealth Act, and does not include the AHA, being an Act of the State of South Australia. The effect of s 8(1) is said to create a hierarchy among Commonwealth laws as follows:
“1. The provisions of other Commonwealth laws (except ss 68, 79, 80 and 80A of the Judiciary Act 1903) and of regulations which are in force on commencement of the Act (but only for so long as they are not amended), prevail over the Evidence Act.
2. The Evidence Act, as a later statute, prevails over ss 68, 79, 80 and 80A of the Judiciary Act.
3. Sections 68, 79, 80 and 80A of the Judiciary Act continue to operate, subject to any inconsistency with the Evidence Act.”
(See Commonwealth Evidence Law, G Bellamy and P Meibusch, 2 ed. at 21).
73 Section 79 of the Judiciary Act 1903 provides:
“The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”
It is difficult to see that inconsistency can arise between the provisions of s 79 of the Judiciary Act and the provisions of the Evidence Act as s 79 itself provides that it does not have the effect of picking up the laws of a State or Territory where, by the laws of the Commonwealth, it is “otherwise provided”.
74 The Federal Court in this case is exercising federal jurisdiction in respect of claims made under the Trade Practices Act and the HPA, being laws made by the Commonwealth Parliament: see s 39B(1A)(c) of the Judiciary Act, ss 76(ii) and 77 of the Constitution, s 19(1) of the Federal Court of Australia Act 1976 (Cth) and s 86(1) of the Trade Practices Act.
75 Section 8(1) of the Evidence Act, by its reference to s 79 of the Judiciary Act, directs attention to the question whether the Evidence Act, a law of the Commonwealth, “otherwise provide[s]” on the subject matter of s 35 of the AHA. However that question will only arise for decision if the State law in question, s 35, is one that can have direct application if it is picked up by s 79 as a surrogate law of the Commonwealth. A State law cannot have direct application if it is rendered invalid for inconsistency with an existing law of the Commonwealth within the meaning of s 109 of the Constitution: see Northern Territory v GPAO at 328 [38].
76 Two questions therefore arise: (1) is s 35 of the AHA inconsistent with the Evidence Act within the meaning of s 109 of the Constitution, and (2) if not, does the Evidence Act “otherwise provide …?”
77 A State law may be inconsistent with a law of the Commonwealth within the meaning of s 109 either because of “textual collision” or because the Commonwealth law manifests an intention to be the exhaustive or exclusive law on the subject with which it deals. A textual collision will occur where there is direct inconsistency between the operation of the two laws such that one law takes away a right or privilege which the other law confers. In Victoria v The Commonwealth of Australia (1937) 58 CLR 618 at 630 Dixon J formulated the test as follows:
“When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.”
78 Thus in P v P (1994) 120 ALR 545, s 35 of the Guardianship Act 1987 (NSW) was held to be inconsistent with the provisions of Part VII of the Family Law Act 1975 (Cth). Part 5 of the Guardianship Act established a comprehensive scheme governing the administration of medical treatment to incapable persons of or above the age of sixteen years. Section 35 contained a general prohibition, under criminal sanction, of the administration of such treatment unless, relevantly, consent had been given by the Guardianship Board. Particularly stringent restrictions were imposed in relation to treatment involving sterilisations. The Family Law Act gave the Family Court jurisdiction to authorise the sterilisation of an incapable child of the marriage. Mason CJ, Deane, Toohey and Gaudron JJ in a joint judgment held that, as a practical matter, the effect of the State scheme was, if the Family Court was bound to observe its provisions in the exercise of its jurisdiction, to remove the medical welfare component from its jurisdiction insofar as it related to incapable New South Wales children of a marriage over the age of sixteen years (at 558). Their Honours said, at 559:
“It follows that the general prohibition of ‘medical or dental treatment’ of an incapable person imposed by s 35 of the Guardianship Act is inconsistent with the provisions of Part VII of the Family Law Act conferring welfare jurisdiction upon the Family Court to the extent that the general prohibition would preclude or render ineffective an order by the Family Court authorising such medical or dental treatment of an incapable child …”
79 Returning to the present case, s 12, in Chapter 2 of the Evidence Act, provides that a person who is competent to give evidence about a fact is compellable to give that evidence. Section 56(1), in Chapter 3, provides that except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding. In terms, this section purports to be comprehensive and to provide on the one hand the key provision controlling admissibility of evidence, and on the other to delimit the source of exceptions to that key provision, namely provisions of the Evidence Act itself which otherwise provide.
80 Part 3.10 of the Evidence Act dealing with PRIVILEGES and 3.11 dealing with DISCRETIONS TO EXCLUDE EVIDENCE contain some of the provisions which modify the general rule in s 56 that relevant evidence is admissible evidence. Section 130 is one of the provisions in Part 3.10. In the conduct of this case the public interest in preserving secrecy or confidentiality comprehended by s 130 raises for consideration by the Court the same public interest which s 35 of the AHA seeks to ensure by protecting Aboriginal traditions, but s 130 also requires consideration of another aspect of public interest which is not addressed in s 35, namely the public interest of admitting into evidence information about the Aboriginal tradition in the search for truth.
81 The general rule of admissibility contained in s 56(1) is not, under the provisions of the Evidence Act, subject to an exception which absolutely prohibits the adducing of evidence relating to Aboriginal tradition in contravention of Aboriginal tradition. That is the prohibition contained in s 35 of the AHA. Section 130 of the Evidence Act permits such evidence, if relevant, to be adduced unless the court otherwise directs after balancing the competing public interests referred to in s 130(1). Section 35 of the AHA if it were to apply, would take away the discretion which s 130 gives to the court. In my opinion it follows that s 35 of the AHA is inconsistent with s 130 of the Evidence Act within the meaning of s 109 of the Constitution, and to the extent of the inconsistency is invalid.
82 If I am wrong in that conclusion the second question posed above would arise, namely whether s 130 “otherwise provide[s]”.
83 In Northern Territory v GPAO Gleeson CJ and Gummow J (with whom Hayne J agreed at 387 [254]) said at 337 [79]-[81]:
“In applying the phrase ‘otherwise provided’ in s 79, Latham CJ and Starke J asked whether the particular law of the Commonwealth was to be regarded in any way as ‘inconsistent’ with the application of the State Act which was said to be ‘picked up’ by s 79. Later, Menzies J asked whether the law relied upon as a law of the Commonwealth was one ‘displacing’ the law of the State. In Australian National Airlines Commission v Commonwealth, Mason J said:
Section 26A of the High Court Procedure Act [1903 (Cth)], which provides that judgments of the court shall carry interest, should be regarded as a comprehensive expression of the entitlement in this court of a litigant to interest on damages to the exclusion of any provision in State law which would otherwise be made applicable by virtue of s 79.
The objective of s 79 is to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself. Seen in that light, the notion of ‘inconsistency’ involved in the phrase ‘otherwise provided’ in s 79 is akin to that first identified by Mason J in the passage from the judgment in University of Wollongong v Metwally set out earlier in these reasons. This is the need to resolve the problem that arises by conflict between conflicting statutes having the same source. The law of a State or Territory which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth.
The issue whether the Family Law Act makes relevant provision otherwise to s 97(3) of the Community Welfare Act may be approached by asking whether the operation of the former so reduces the ambit of the latter that the provisions of the Family Law Act are irreconcilable with those of the Territory law, with the result that the Family Law Act ‘otherwise provide[s]’.” [footnotes and case references omitted.]
84 In the present case if there is not an inconsistency within the meaning of s 109 of the Constitution between the Evidence Act and the requirements of s 35 of the AHA, I consider that the Evidence Act makes relevant provision otherwise to s 35 of the AHA as the former so reduces the ambit of the prohibition in s 35 of the AHA that the provisions of the Evidence Act are irreconcilable with those of s 35.
85 For these reasons I consider that s 35 of the AHA has no operation in these proceedings. This conclusion means that the claim for immunity in respect of evidence relating to the restricted women’s knowledge is to be resolved by application of s 130 of the Evidence Act. For the reasons given above, I consider that the evidence should not be excluded on public interest grounds but should be received subject to the stringent restrictions stated above.
86 In these circumstances it is unnecessary to consider the applicants’ contention that s 35 is rendered inoperative by the other Commonwealth laws identified in their s 78B notice. These grounds have not been the subject of oral argument, or written submissions by the respondents.
87 In summary, I rule that s 35 of the AHA does not apply to witnesses whilst giving evidence in the trial of this action. In relation to the restricted women’s knowledge the subject of Appendices 2 and 3 to the report of Dr Fergie there will be no direction under s 130 of the Evidence Act that information about the restricted women’s knowledge not be adduced as evidence. However the Court directs pursuant to ss 17(4) and 50 of the Federal Court of Australia Act 1976 (Cth) that evidence about that topic be adduced in camera in the presence of only one female legal practitioner representing each group of parties in the proceedings, and that the evidence received not be disseminated without further order of the Court.
88 Insofar as it may become necessary to put information about the restricted women’s knowledge to Mr Tickner in the course of his oral evidence the above directions will apply to that part of Mr Tickner’s evidence.
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I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa. |
Associate:
Dated: 28 July 2000
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Counsel for the Applicants: |
Ms M E Shaw QC with Mr D J Meyer |
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Solicitor for the Applicants: |
Lynch & Meyer |
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Counsel for the 1st & 2nd Respondents: |
Mr T R Anderson QC with Mr K G Nicholson |
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Solicitor for the 1st & 2nd Respondents: |
Thomson Playford |
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Counsel for the 3rd, 4th & 5th Respondents: |
Mr M A Frayne |
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Solicitor for the 3rd, 4th & 5th Respondents: |
Australian Government Solicitor |
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Date of Hearing: |
24 and 25 July 2000 |
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Date of Judgment: |
28 July 2000 |
