FEDERAL COURT OF AUSTRALIA

Sampi v State of Western Australia (No. 2) [2001] FCA 620

NATIVE TITLE - EVIDENCE - taking of evidence in restricted circumstances - gender restricted evidence protection – disclosure to male professionals not present at hearing.

Native Title Act 1993 (Cth) s 82(2)

Western Australia v Ward (1997) 145 ALR 512

PAUL SAMPI AND OTHERS V STATE OF WESTERN AUSTRALIA AND OTHERS

WG 49 OF 1998

JUDGE:          BEAUMONT ACJ

DATE:            17 MAY 2001

PLACE:          BROOME (ONE ARM POINT)

THE COURT ORDERS THAT:

1.                              The transcript of the evidence, and the audio and electronic records of the evidence from which the transcript is made, are to be separated from the general transcript and records.  The transcript is to be printed on paper of a different colour from that of the general transcript, but paginated chronologically with the general transcript.  The transcript must not be transmitted or otherwise dealt with by email.

2.                  The transcript of evidence is to have a covering sheet clearly marked with the date of the hearing at which the evidence was given and the words "Gender Restricted Evidence - This transcript records evidence by Aboriginal men concerning matters that by Aboriginal tradition must not be revealed to persons other than initiated adult makes.  This transcript must not be viewed by persons other than –

(a)                those present at the time of this hearing;  and

(b)                Professor Howard Morphy and Mr Paul Greenfeld, being, respectively, the second and fourth respondents’ expert anthropologists, provided always:  (i) that counsel for those respondents respectively shall first have certified in writing, filed with the Court that, in his opinion, disclosure of that transcript or part of that transcript is necessary at that stage for the purposes of the proper conduct of the case of that respondent;  and (ii) that such expert has first filed with the Court an undertaking to the Court that the evidence in that transcript will not be divulged to any person not present at the hearing of the evidence and be not used for any purpose other than for the purpose of this proceeding or any appeal.

3.         The transcript of evidence is to have printed on each page the words "Gender Restricted - Adult Males Only – See Order 2 dated 17 May 2001”.

4.                  Save for the copies for the Court and for each person present at the hearing of the evidence (which copies will be numbered by the Registry's remote hearings coordinator and the name of the recipient recorded by the coordinator), no copies are to be made of the transcript.

5.                  The evidence given must not be divulged to any person not present at the hearing of the evidence, except to the experts mentioned in par (b) of Order 2 in accordance with its provisions, and must not be used for any purpose other than for the purpose of this proceeding or any appeal.

6.                  At the conclusion of the matter (including any appeal) the records of evidence, whether transcript, computer disk or tapes, be delivered up by the respondents to the solicitors for the applicants.  Liberty to apply, without onus, in this connection.

7.                  Note that the second and fourth respondents have applied for leave to disclose restricted transcript to certain other persons.  I stand this part of their application over to the conclusion of the hearing of the restricted evidence.

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

REASONS FOR JUDGMENT (NO. 2)

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

BEAUMONT J:

1                     Further to the orders I made for the reasons published on 30 April 2001, I have heard argument today on the further matters mentioned in those reasons for judgment, in particular, the manner in which the transcript of the gender restricted evidence may be dealt with.  With one exception, the parties have agreed on the procedures to be followed, at least until further order. 

2                     The exception arises out of the submission now made on behalf of the second and fourth respondents that they wish to be in a position to disclose to male professionals, namely, legal representatives and expert anthropologists, information contained in the confidential or restricted transcript.  Shortly stated, the position is that those respondents have adopted the approach that, given the dimensions of the on-site evidence in this matter (spread over a period in excess of three weeks) it is not practicable to arrange for those professionals to be present over the period of the hearing on country. 

3                     The applicants oppose this application for disclosure to those persons.  They rely, in this connection, upon the affidavit of Mr Sampi sworn on 28 March 2001 and, in particular, rely upon par 8 of that affidavit, which is in the following terms:

"In our Law, we can only talk about ngulungul things with other men face-to-face.  We need to see those men close up when we talk to them about ngulungul things.  Those men must hear it from us, not from a book or paper."

4                     In essence then, the evidence of Mr Sampi is that the subjects of the restricted evidence must only, according to custom, be disclosed to other men who are "close-up, when we talk to them" about these things. 

5                     Taken literally, it would follow that if regard is to be had to this custom in any absolute sense, the second and fourth respondents’ present application must fail.  However, it seems to me that, whilst I fully accept the evidence of Mr Sampi in his affidavit (including, but not limited to, the evidence in par 8) I should view that evidence in the light of the present context, which is the giving of evidence in a claim for a determination of Native Title, brought by the applicants, in which a written transcript will be prepared although, in accordance with the practice of the Court in such matters, made available only on a restricted basis.  In other words, some degree of recognition of the litigious and technological context must be, in my view, taken into account when assessing the weight of Mr Sampi's evidence for present purposes.  (I should note, in this connection, as far as it went, Mr Sampi's evidence was not sought to be seriously challenged in cross-examination or in argument.)

6                     In accordance with the current practice of the Court, not only has it been seen to be necessary for the Court and the representatives of the parties to view the sites in question in the proceedings, but much of the oral evidence itself is taken on those sites.  At least prima facie then, the Court proceeds upon the footing, in Native Title matters, that professionals involved, legal and anthropologists, in the conduct of the proceedings on both sides of the record will, in the case of the principal parties, be present, not only on the views of the sites, but at the giving of the evidence at those sites.  However, in the interests of the administration of justice and taking into account, specifically in this context, the provisions of s 82(2) of the Native Title Act 1993, I propose, in the present connection, to have regard to the following:  first, the cultural concerns of the applicants;  and secondly, any prejudice that might be caused to a respondent in terms of possible denial to a respondent of procedural fairness as I mentioned in my reasons dated 30 April, 2001.  In this particular present context, I take into account two further specific considerations:  (1) I give some weight to the circumstance previously mentioned, that given the dimensions and parameters of the on-country evidence in this matter, extending as I have said over a period in excess of three weeks, considerations of costs and availability of other professionals, specifically anthropologists, must be given some consideration;  (2) further, looking at the matter more broadly in terms of the administration of justice itself, I am influenced by the hope (at least) and perhaps an expectation, that if access of a particular respondent to expert professional anthropological assistance is made available, this should and, at least, could, assist in the process of reducing the number and the scope of the issues in dispute between the parties.  It is a matter of grave concern to the Court that Native Title litigation is so resource-intensive and so expensive for all concerned.  I hope, and perhaps should expect, that the availability of expert assistance to a respondent will mean that there will be less time ultimately taken, and less resources ultimately consumed, in the proper disposition of these proceedings.  To my mind, this is a weighty consideration in the present context.  It needs, however, to be balanced against the consideration that I previously mentioned, namely that, prima facie, any professional anthropologist engaged in the conduct of litigation of this kind should have the advantage that inevitably flows from presence at the site.  Yet, the Court must be practical and realistic in exercising its judicial discretion.

7                     I have found the exercise of this particular discretion a very difficult one, given its abstract character.  In my reasons dated 30 April 2001, I cited observations of Branson J in Western Australia v Ward (1997) 145 ALR 512 in this connection.  It has been my experience (as a judicial officer and as a practitioner for many years) that it is a dangerous thing to attempt to decide any legal question, particularly a discretionary one, in the abstract.  One finds that, with the benefit of hindsight, that is to say, with the benefit of the necessary detail of the actual content of the subject matter to be dealt with, what appear to be real matters of contention can wholly, or largely, disappear as serious issues.  But, in the present application, I will not have the benefit of that hindsight;  I will not know what the detail of this evidence is, although I do have the benefit of a statement of the general effect of the evidence now contained in Exhibit P.  Nonetheless, for present purposes, I still do not know whether, in truth, it will be necessary for counsel for the second and fourth respondents to disclose to the other professionals nominated, the contents of the whole or part of the transcript of this restricted evidence.

8                     It must be emphasised that, in the course of argument, I indicated to counsel for the second and fourth respondents that I would be in a better position to deal with their application after the evidence has been given.  Nonetheless, it has been forcefully put to me that I should decide the matter now;  it is my duty to do so.

9                     Whilst I am prepared to accede to the application, I will only do so upon terms, the details of which I will mention later, but, in essence, they involve, first, a certification of counsel for those respondents that, in their opinion, disclosure at that stage of the evidence is necessary for the proper conduct of that respondent's case;  and secondly, a condition that, in the event of such certification, any such expert has first filed with the Court an undertaking not to divulge the evidence to any other person.

10                  In summary then, I am of the opinion that it is in the interests of justice that some strictly controlled disclosure should be made to the two anthropologists nominated.  However, I   refuse, at this stage, the application made to disclose this material at the present point to the other professionals, that is, the legal representatives.  But, that application may be renewed at the conclusion of the hearing of the restricted evidence.

Orders

11                  I now make the orders until further order as follows:

1.                  The transcript of the evidence, and the audio and electronic records of the evidence from which the transcript is made, are to be separated from the general transcript and records.  The transcript is to be printed on paper of a different colour from that of the general transcript, but paginated chronologically with the general transcript.  The transcript must not be transmitted or otherwise dealt with by email.

2.                  The transcript of evidence is to have a covering sheet clearly marked with the date of the hearing at which the evidence was given and the words "Gender Restricted Evidence - This transcript records evidence by Aboriginal men concerning matters that by Aboriginal tradition must not be revealed to persons other than initiated adult makes.  This transcript must not be viewed by persons other than –

(a)                those present at the time of this hearing;  and

(b)                Professor Howard Morphy and Mr Paul Greenfeld, being, respectively, the second and fourth respondents’ expert anthropologists, provided always:  (i) that counsel for those respondents respectively shall first have certified in writing, filed with the Court that, in his opinion, disclosure of that transcript or part of that transcript is necessary at that stage for the purposes of the proper conduct of the case of that respondent;  and (ii) that such expert has first filed with the Court an undertaking to the Court that the evidence in that transcript will not be divulged to any person not present at the hearing of the evidence and be not used for any purpose other than for the purpose of this proceeding or any appeal.

3.                  The transcript of evidence is to have printed on each page the words "Gender Restricted - Adult Males Only – See Order 2 dated 17 May 2001”.

4.                  Save for the copies for the Court and for each person present at the hearing of the evidence (which copies will be numbered by the Registry's remote hearings coordinator and the name of the recipient recorded by the coordinator), no copies are to be made of the transcript.

5.                  The evidence given must not be divulged to any person not present at the hearing of the evidence, except to the experts mentioned in par (b) of Order 2 in accordance with its provisions, and must not be used for any purpose other than for the purpose of this proceeding or any appeal.

6.                  At the conclusion of the matter (including any appeal) the records of evidence, whether transcript, computer disk or tapes, be delivered up by the respondents to the solicitors for the applicants.  Liberty to apply, without onus, in this connection.

7.                  Note that the second and fourth respondents have applied for leave to disclose restricted transcript to certain other persons.  I stand this part of their application over to the conclusion of the hearing of the restricted evidence.

Associate:

Dated:              17 May 2001