FEDERAL COURT OF AUSTRALIA

Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) [2019] FCA 1282

ORDERS

THE COURT ORDERS THAT:

Male Gender restricted evidence

1.    “Male gender restricted evidence” means such information relating to Aboriginal law and custom as may be identified, recorded in written form or given in oral evidence at the hearings to take place from 30 September 2019 which information may not be disseminated to:

(a)    women;

(b)    Aboriginal men who have not been initiated into the relevant men’s law that is to be the subject of the evidence; and

(c)    children.

2.    The following people only may be present at the hearing when any male gender restricted evidence is given as oral evidence or may read any male gender restricted evidence or any transcript thereof:

(a)    Aboriginal men who have been initiated into the relevant men’s law that is to be the subject of the evidence;

(b)    any non-Aboriginal male party;

(c)    any male expert engaged by a party for the purpose of providing advice about such matters;

(d)    any male counsel, male solicitor or necessary male staff of a party or its legal representative;

(e)    the Judge and those male staff as directed by the Judge; and

(f)    Aaron Stuart, a member of the First Applicant, upon his having provided to the Court an undertaking that he will not divulge such male gender restricted evidence to any person and shall only discuss such male gender restricted evidence with the First Applicant’s male counsel and solicitor.

3.    Male gender restricted evidence must not be divulged to any person not present at the hearing other than:

(a)    Aboriginal men who have been initiated into the relevant men’s law the subject of the evidence;

(b)    male non-Aboriginal parties;

(c)    male experts engaged by a party for the purpose of providing advice about such matters;

(d)    male counsel, male solicitors or necessary male staff of a party or its legal representative;

(e)    a Judge and those male staff of a Judge as directed by the Judge; and

(f)    Sydney Strangways, a member of the First Applicant, upon his having provided to the Court an undertaking that he will not divulge such male gender restricted evidence to any person and shall only discuss such male gender restricted evidence with the First Applicant’s male counsel and solicitor.

4.    Male gender restricted evidence:

(a)    Shall be recorded and transcribed by a man;

(b)    Shall, along with any audio and computer records of the evidence, be kept separate from the general transcript and shall be printed on coloured paper; and

(c)    Shall have a cover sheet marked:

“‘Gender Restricted Evidence’ – This transcript records evidence and submissions in relation to matters of Aboriginal law and customs which by Order of the Court must not be viewed by any person other than:

   (i)    any non-Aboriginal male party;

(ii)    Aboriginal men who have been initiated into the men’s law the subject of the evidence;

(iii)    any male expert engaged by a party for the purpose of providing advice about such matters;

(iv)    any male counsel, male solicitor or necessary male staff of a party or its legal representative; and

(v)    the Judge and those male staff as directed by the Judge.”

5.    Male counsel for the parties, with the assistance of their clients’ respective male experts, if any, and in the case of male counsel for the Second and Third Applicants, in consultation with the men who gave the restricted evidence, shall use their best endeavours to agree upon whether any of the evidence given in restricted session may be made available as non-confidential transcript, and upon whether a statement may be tendered as to the effect, without disclosing the content, of the remaining restricted material.

6.    At the conclusion of the proceedings, including any appeal, the Second and Third Applicants be at liberty to apply for an order that all gender restricted transcript or other records of such transcript including computer disk or tapes, shall be delivered up by the parties to the solicitors for the Applicants, for destruction.

7.    The parties have liberty to make further submissions with respect to the precise form of the undertakings to the Court to be given by Mr Stuart and Mr Strangways in accordance with Orders 2(f) and 3(f) respectively, and with respect to the form of the orders with respect to female gender restricted evidence.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    It is common for this Court to make orders in native title proceedings as to the manner in which evidence is taken or disseminated so as to take account, so far as is reasonably practicable, of the cultural and customary beliefs, sensitivities and concerns of Aboriginal peoples and Torres Strait Islanders. These have included orders precluding persons of a particular gender from hearing or reading evidence which it is not culturally appropriate for persons of that gender to hear or read, and restricting to the minimum the number of persons who may hear evidence who are not ritually qualified to know of those matters.

2    Commonly, the Court is able to make orders of this kind by consent or at least without objection. Sometimes orders are not even required because the parties reach agreement about these matters or make particular arrangements for their representation in the proceedings which address the concerns and the Court notes and gives effect to their agreement and those arrangements.

3    This judgment concerns an application concerning the way in which account is to be taken of the cultural and customary concerns of a claimant group in proceedings for the determination of overlapping claims of native title. The judgment is necessary because the parties have not, despite discussions directed to that end, been able to reach agreement as to the form of orders which are appropriate. It is unfortunate that the Court has to impose a position on the parties. It encourages them to continue their efforts to reach a consensual position.

The factual setting

4    The proceedings concern a comparatively small area of land around Oodnadatta in the Far North of South Australia, known as the “Oodnadatta Common”.

5    There are two overlapping claims for determination of native title over the Oodnadatta Common. The first was commenced by the Arabana People on 1 March 2013 (the Arabana No 2 Application), which concerns two separate areas (Part 1 and Part 2). Separate arrangements are being made for the determination of the claim with respect to Part 1 and it is not the subject of this judgment. The part of the Arabana No 2 Application which concerns the Oodnadatta Common is known as “Arabana No 2 (Part 2)”.

6    The second claim is made by the Walka Wani People. On 12 April 2013, they commenced a proceeding seeking a determination of native title in respect of part of the area of the Oodnadatta Common (SAD78/2013). By a second application filed on 14 September 2018 (SAD220/2018), the Walki Wani People sought a determination of native title over the remaining portion of the Oodnadatta Common. The two applications of the Walka Wani are known as Walka Wani No 1 and Walka Wani No 2. In combination, the areas which are the subject of Walka Wani No 1 and Walka Wani No 2 overlap exactly the area of Arabana No 2 (Part 2).

7    On 26 September 2018, the Court ordered that the Arabana No 2 (Part 2) Native Title Claim (SAD38/2013), the Walka Wani No 1 application (SAD78/2013) and the Walka Wani No 2 application (SA220/2018) be dealt with in the one proceeding and that that proceeding be known as the “Oodnadatta Common Overlap Proceeding” (in this judgment, “the Overlap Proceeding”). The Arabana People are the first applicant in the Overlap Proceeding; the applicant in Walka Wani No 1 the second applicant and the applicant in Walka Wani No 2 the third applicant. It is convenient in these reasons to refer to the second and third applicants as “the Walka Wani Applicants”.

8    The trial of the Overlap Proceeding is to commence on 30 September 2019.

9    In accordance with a timetable established by the Court’s orders on 26 September 2018, the Walka Wani Applicants filed an interlocutory application (later amended) seeking orders for the taking account of particular cultural and customary concerns. The Arabana People have not sought any counterpart orders with respect to cultural or customary concerns.

10    By their amended interlocutory application, the Walka Wani Applicants seek orders with respect to the hearing and determination of “male gender restricted evidence” and “female gender restricted evidence”. Although the sets of orders sought with respect to these two categories of evidence are not mirror images, they do have a great deal in common. For the purpose of these reasons, and without intending any disrespect to females, it is appropriate to refer only to the orders sought concerning male gender restricted evidence. The parties’ submissions were made by reference to this category of evidence and the Walka Wani Applicants did not in any event adduce any evidence with specific reference to female gender restricted evidence. For these and other reasons, it is appropriate to defer consideration of orders with respect to female gender restricted evidence.

11    The Walka Wani Applicants seek, first, an order (proposed Order 1) defining male gender restricted evidence as follows:

“Male gender restricted evidence” means such information relating to Aboriginal law and custom as may be identified, recorded in written form or given in oral evidence at the hearings to take place from 30 September 2019 which information may not be disseminated to:

 a.    women;

b.    Aboriginal men who have not been initiated into the relevant men’s law that is to be the subject of the evidence;

c.    children.

As is apparent, the effect of this order would preclude any Aboriginal man who has not been initiated into the relevant Men’s Law which is to be the subject of evidence from hearing that evidence or being informed of it.

12    The Walka Wani Applicants then seek an order (proposed Order 2) limiting those who may be present at the hearing when male gender restricted evidence is given and who may read transcripts of that evidence, as follows:

The following people only may be present at the hearing when any male gender restricted evidence is given as oral evidence or may read any male gender restricted evidence or any transcript thereof:

a.    Aboriginal men who have been initiated into the relevant men’s law that is to be the subject of the evidence;

 b.    any non Aboriginal male party;

c.    any male expert engaged by a party for the purpose of providing advice about such matters;

d.    any male counsel, male solicitor or necessary male staff of a party or its legal representative; and

 e.    the Judge and those male staff as directed by the Judge.

13    Next, the Walka Wani Applicants seek an order (proposed Order 3) limiting the divulgement of male gender restricted evidence to any person not present at the hearing other than a person within one or other of the categories set out in the previous paragraph.

14    Next, the Walka Wani Applicants seek an order (proposed Order 4) that the male gender restricted evidence be recorded and transcribed by a man as well as an order limiting access to the audio and computer records of the evidence and the transcript to persons in the same categories listed in proposed Order 2.

15    Finally, the Walka Wani Applicants seek an order (proposed Order 5) as follows:

Male counsel for the parties, with the assistance of their clients’ respective male experts, if any, and in the case of male counsel for the Applicant, in consultation with the men who gave the restricted evidence, shall use their best endeavours to agree upon whether any of the evidence given in restricted session may be made available as non-confidential transcript, and upon whether a statement may be tendered as to the effect, without disclosing the content, of the remaining restricted material.

16    Although the Arabana People and the State of South Australia do not oppose the Court making orders taking account of the cultural and customary concerns of the Walka Wani Applicants, they do oppose orders being made in the precise form sought by the Walka Wani Applicants. A pastoralist who is a respondent to the Walka Wani No 1 application and therefore a party to Overlap Proceeding was, at his request, excused from the hearing and so did not present any view. Airservices Australia is also a respondent to the proceedings but has been excused, at its request, from participation in the Case Management Hearings.

17    It is the limitation with respect to the Aboriginal men who may hear or be informed of the evidence to which the Arabana People and the State object. In the case of the Arabana People, that is because the restriction to Aboriginal men “who have been initiated into the relevant men’s law that is to be the subject of the evidence” will preclude any member of the Arabana People from hearing, or being informed of, the male gender restricted evidence. Counsel submits, and the solicitor for the Arabana People (Mr Kenny) has deposed, that such a restriction will thereby inhibit their ability to give instructions concerning that evidence, to contest that evidence to the extent thought appropriate, and to give evidence themselves concerning those matters.

18    Counsel for the Arabana People proposed variations to the orders sought by the Walka Wani Applicants to overcome these difficulties with respect to the male gender restricted evidence. Counsel for the State of South Australia supported the Arabana People’s proposal.

19    The Arabana People propose first an addition to proposed Order 2 by the inclusion of a subpara (f) as follows:

(f)    Aaron Stuart, a member of the First Applicant, upon his having provided to the Court an undertaking that he will not divulge such male gender restricted evidence to any person and shall only discuss such male gender restricted evidence with the First Applicant’s male counsel and solicitor.

20    Next, the Arabana People propose that a subpara (f) be added to proposed Order 3 as follows:

(f)    Sydney Strangways, a member of the First Applicant, upon his having provided to the Court an undertaking that he will not divulge such male gender restricted evidence to any person and shall only discuss such male gender restricted evidence with the First Applicant’s male counsel and solicitor.

21    Counsel for the Arabana People identified Aaron Stuart and Sydney Strangways as the particular persons within the Arabana People who will be able to give the instructions which counsel considers necessary in the conduct of the hearing.

22    Aaron Stuart is described as “a senior Arabana man”. For approximately 15 years, Mr Stuart was Chairperson of the Arabana Aboriginal Corporation RNTBC and he is currently the Vice-Chairperson of that Corporation. The Arabana Aboriginal Corporation is the registered native title body corporate with respect to the native title recognised in the Arabana No 1 claim: Dodd v State of South Australia [2012] FCA 519. The Arabana People propose leading evidence from Aaron Stuart in the trial, and an outline of the evidence to be led from him has been provided.

23    Sydney Strangways, whose name the Arabana People seek to have added to proposed Order 3, is now 87 years old and is described as the most senior of the Arabana men. Although the Arabana People intend to lead evidence from Mr Strangways, he does not wish to give his evidence in Oodnadatta. For that reason, the solicitors for the Arabana People wish to be able to consult with him about the evidence given by the witnesses called by the Walka Wani Applicants at Oodnadatta and on the claim area.

24    I record now that counsel for the Walka Wani Applicants did not dispute the factual matters concerning Aaron Stuart or Sydney Strangways on which the Arabana People rely nor suggest that the Court should have any concerns about the adequacy of, or their compliance with, the foreshadowed undertakings.

The Court’s power

25    The starting point for the Court’s consideration is s 17 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). It authorises the Court to order the exclusion of persons from a hearing and provides (relevantly):

(1)    Except where, as authorized by this Act or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court.

…

(4)    The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or of those persons, as the case may be, would be contrary to the interests of justice.

26    Section 82 of the Native Title Act 1993 (Cth) (the NT Act) is a law of the Commonwealth of the kind to which s 17(1) of the FCA Act refers. It provides (relevantly):

Rules of evidence

(1)    The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

Concerns of Aboriginal peoples and Torres Strait Islanders

(2)    In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.

…

27    Section 82 contemplates implicitly that the manner in which the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders may involve some prejudice to other parties, but enjoins the Court from acting in a manner which may cause undue prejudice to another party. Whether prejudice will be of that kind will be a matter of evaluation, having regard to the circumstances of the case generally.

28    Division 34.7 of the Federal Court Rules 2011 (Cth) (the FCR), and in particular rr 34.120 to 34.126, contain provisions concerning the making of applications for the Court to take account of cultural and customary concerns.

29    Part VAA of the FCA Act authorises the Court to make a suppression order or a non-publication order with respect to, amongst other things, evidence and information about evidence (s 37AF). Section 37AG indicates the grounds upon which the Court may make a suppression order or non-publication order. Relevantly for present purposes, orders of these kinds may be made to prevent prejudice to the proper administration of justice.

30    Section 37AE of the FCA Act requires the Court, when deciding whether to make a suppression order or non-publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The importance of the principle of open justice was recently restated by Allsop CJ in Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4]:

The principle of open justice is one of the overarching principles in the administration of justice, in this Court and all others. It lies at the heart of the exercise of judicial power as part of the wider democratic process. The principle involves justice being seen to be done. A key part of this task is enabling accurate and fair public reports of proceedings. Open justice is not an absolute concept, unbending in its form. It must on occasion be balanced with other considerations, including but not limited to considerations such as the avoidance of prejudice in the administration of justice or the protection of victims. Nevertheless, an order restricting the ordinary open justice approach is not lightly made. This balancing exercise is reflected in ss 17, 37AE and 37AG of the Federal Court of Australia Act 1976 (Cth), as well as in the Federal Court Rules 2011 (Cth): see e.g. rr 2.31, 2.32.

31    Despite the importance of open justice, the Court has frequently recognised that the proper administration of justice in native title proceedings will warrant an order under s 37AF of the FCA Act in relation to evidence of cultural or ritual significance.

32    In the course of the proceeding at first instance which led to the decision of the Full Court in Western Australia v Ward [2000] FCAFC 191; (2000) 99 FCR 316, Lee J gave directions concerning the gender of persons who could be present when gender restricted evidence was given, and restricting the dissemination of transcripts of that evidence, so as to take account of the cultural and customary concerns of the Miriuwung and Gajerrong People. His Honour referred to these directions in his decision on the application for determination of native title: Ward (on behalf of the Miriuwung and Gajerrong People) v State of Western Australia (1998) 159 ALR 483 at 497.

33    The appeal by the State of Western Australia against those directions was, in substance, dismissed: Western Australia v Ward (1997) 76 FCR 492. In their joint judgment, Hill and Sundberg JJ spoke, at 500, of the need for a balancing of both public and private interests in determining whether such directions are appropriate. Their Honours said:

The public interest in open justice as well as the private interest of the parties to such access will not likely be interfered with. Section 50 [now s 37AG] of the Federal Court Act provides the criterion to be taken into account, relevantly, prejudice to the administration of justice. In determining whether such prejudice exists, there will be a need to balance the public and private interests, to which reference has already been made, with the circumstance which gives rise to the application for suppression. No narrow interpretation is to be given to the s 50 expression “prejudice to the administration of justice”. … [I]n a case such as the present, the interest of the parties, the effect that disclosure of the evidence may have and the advantages or disadvantages which an order under the section may bring with it, will all be weighed against the public interest in open justice to determine whether on balance an order should be made. It will be only then that an order restricting publication of the evidence to a particular class of persons will be appropriate.

Mere assertion that disclosure of the evidence might cause some harm to the person giving the evidence would not necessarily suffice to justify an order. It would be necessary for a judge, when a specific claim is made for an order under s 50, to evaluate the risk to the persons giving evidence, culturally and spiritually on the one hand, with the other factors to which reference has already been made on the other. Where the interests of justice in an overall sense require that evidence be given only to persons of particular gender, there is no reason why the Court should not confine the class of persons to whom that evidence may be given to persons of a particular gender. But the Court in so doing will be careful to ensure as best it can that justice is done not only to the person seeking to restrict the persons to whom the evidence may be known, but also to the other parties to the litigation, particularly where the circumstances result in no one person being privy to the entirety of the evidence other than the judge. If that is a situation that can possibly be avoided without injustice, then it should be.

34    Later, at 502, their Honours said:

[I]n our view, the Court will not, as a matter of course, make an order restricting the hearing of evidence in a native title case to persons of a particular gender, perhaps excluding the clients from knowledge of that evidence as well as limiting knowledge of the evidence to persons of a particular gender. It will be only where the interests of justice dictate that course that such an order will be made.

35    In her separate judgment, Branson J said at 509:

However, in every case in which orders of this exceptional kind are sought, the Court will require to be satisfied that the statutory grounds which justify their making are established. The Court could only be so satisfied if, upon weighing all relevant competing interests impacting upon a proper assessment of what the justice of the case requires, the balance favours the making of such orders. The competing interests in any case are likely to include:

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

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

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

(d)    the interest of the parties respectively being able to be represented as to all aspects of the case by the one representative or team of representatives;

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

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

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

(h)    the interest of advancing, rather than detracting from, the purposes of relevant legislation.

To enable the above balancing exercise properly to be undertaken, it will, in my view, rarely, if ever, be sufficient for the Court to act simply on the assertion of counsel or a party that certain evidence which it proposes to lead is, for example, “gender restricted”. Before making an order of the kind which I have described above as exceptional, the Court will wish to be satisfied, usually following the receipt of evidence, of the existence of the asserted legal or cultural rule or norm, of the extent to which (if at all) such rule or norm admits of flexibility in its application, of the importance of the relevant evidence to the case of the party seeking to call it, of the degree of likelihood that if the requested restrictions are not imposed on the publication of such evidence the evidence will not be given, and of the proportion of the total evidence proposed to be called by the applying party in respect of which orders restricting its publication are likely to be sought. In particular cases additional considerations might arise.

36    It is to be noted that both decisions in Ward were made before the insertion of s 72 (in its present form) and s 78A into the Evidence Act 1995 (Cth), which were effected by the Evidence Amendment Act 2008 (Cth) and before the insertion of subs (2) in its present form into s 82 of the NT Act, effected by the Native Title Amendment Act 1998 (Cth). Before the 1998 amendment, s 82(2) had provided:

(2)    The Court, in conducting proceedings, must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.

37    Unlike its original form, s 82(2) now precludes the Court from taking account of relevant cultural and customary concerns if to do so would prejudice unduly any other party to the proceedings. Nevertheless, s 82(2) continues to reflect a legislative recognition that the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders are matters of which account may appropriately be taken in proceedings for the determination of native title and, accordingly, in the determination of the present application.

38    In Jango v Northern Territory of Australia [2003] FCA 1230, Sackville J held that, despite the opposition of the Commonwealth, gender restriction orders were appropriate. The principal matter upon which the Commonwealth had relied in resisting the making of the orders was that, while it had retained both male and female counsel, neither would be able to know the entirety of the evidence led in the case, and would thereby be inhibited in giving advice and seeking instructions from the Commonwealth on the whole of the evidence, and that the orders may inhibit the capacity of counsel to make meaningful decisions about cross-examination, the evidence to be called and the making of submissions.

39    As noted at the commencement of these reasons, it has been commonplace for the Court to make orders taking account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders. These have included orders limiting those who may hear or read evidence to persons of a particular gender or to persons who are ritually qualified to hear such evidence. A recent example is Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 at [48]-[50]. See also Northern Territory of Australia v Mr A. Griffiths (deceased) (No 2) [2019] HCA 19 in which Nettle J said:

[3]    … Such matters (gender restricted knowledge, which includes performance, song, narrative and objects) are a fundamental component of Aboriginal religious belief and practice. The integrity of their restricted domain is sustained through a structured system where knowledge is controlled by some and allocated to others according to customary rules for its dissemination. Failure to comply with those rules is believed to result in exposure to harmful and potentially fatal spirituality. Those who break the rules for transmission may be subjected to social opprobrium and spiritual reprisals that may be deadly.

The evidence

40    As already noted, the evidence on which the Walka Wani Applicants relied in support of the application was directed to male gender restricted evidence only.

41    Mr Doolan, who is 36 years old, is a Lower Southern Arrernte man. He said that the Lower Southern Arrernte and the Yankunytjatjara People have the same Law and that they are “together for the Law and knowledge of country around Oodnadatta”. Mr Doolan deposed that there is an important tjukurpa which goes through the Oodnadatta Common claim area and which is part of a secret and dangerous Men’s Law, known as the “Red Ochre Law”. Only men are responsible for the tjukurpa. Mr Doolan deposed to practices within the Walka Wani by which knowledge regarding this tjukurpa and other matters is imparted only to initiated men of a certain seniority. He also deposed to there being places within the claim area, in particular Hookey’s Hole, to which women and uninitiated Aboriginal men are not permitted to go and about which they are not permitted to be told stories. He then deposed:

[7]    Under our Law we know that if any one breaks the Law by telling women or any uninitiated Aboriginal man about this tjukurpa and Red Ochre Law they will get boned and end up dead. If anyone told secret Men's business to anyone other than senior watis and tjilpis that person could not go to Law business again because if they did turn up there they will get killed as soon as they arrived at the Law ground. If senior watis and tjilpis can't find that person to kill they will kill one of the family members of the wrong doer who didn't follow the rules of secrecy. I have talked about this with the senior watis and tjilpis in our claim group. They say that they will only talk about those Men's sites and stories at the Oodnadatta Overlap hearing if that evidence can only be heard by the Judge, senior male lawyers, and male anthropologists, senior watis and tjilpis. Women and uninitiated Aboriginal men cannot be told about that evidence, if they are told the men will not give that evidence.

42    Mr Doolan’s evidence was supported by the anthropologist, Dr Scott Cane. In his report of 14 May 2019, Dr Cane said that he was aware of terrain within the Oodnadatta area related to the Red Ochre mythology which “drives a significant cyclical sacred ceremony”. Dr Cane continued:

Reference to that place and mythology is likely to be described as Miilmiil. Miilmiil is a Western Desert word that refers to something secret, sacred, dangerous and forbidden. It is a word that initiated men are loathe to use in public and usually pre-empt it with a serious braced countenance (the personal bearing often negating the need for the word). Miilmiil subjects are not for women, children or the uninitiated and would require selective and confined restricted evidence if given.

43    Dr Cane also gave evidence supporting Mr Doolan’s account of the consequences which may result in the case of unauthorised disclosure of secret men’s knowledge.

44    The summary of the proposed evidence filed by the Walka Wani Applicants on 8 May 2019 gives a slightly more detailed account of the tjukurpa and of the Red Ochre Law relating to it.

Consideration

45    The entitlement of a party to litigation to hear, or at least be informed about, the evidence presented for the purpose of defeating the party’s claim is an incident of the natural justice hearing rule. That rule is so well-established as hardly to require the citation of authority. I record, however, the statement of Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.

(Emphasis added)

46    Likewise in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319, French CJ said:

[54]    Procedural fairness or natural justice lies at the heart of the judicial function. … It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. …

47    In Pearce v Button (1986) 8 FCR 408 at 427, Spender J said:

The right to be heard is a major component of the principles of natural justice. Implicit in that right is the right of a party reasonably to test the case presented against it. In my opinion, a clear and serious breach of the requirements of natural justice occurs where a party to proceedings, on a matter central to those proceedings, is denied a fair and reasonable opportunity to challenge what is said against it.

48    In order for a party to exercise the right to be heard, the party must ordinarily know the evidence presented which affects its interests. Although this entitlement is fundamental to curial proceedings, it is not absolute. There may be particular instances in which a party may be precluded from hearing personally evidence affecting that party’s interests: Western Australia v Ward (1997) 76 FCR 492 at 501-2 (Hill and Sundberg JJ), at 508 (Branson J). Nevertheless, the importance of the hearing rule indicates that the Court should depart from it only when satisfied that the proper administration of justice requires that that occur.

49    Mr Hughston SC, counsel for the Walka Wani Applicants, emphasised a number of matters in support of orders in the form proposed by those Applicants. First, the secrecy concerning the Red Ochre Law to which Mr Doolan had deposed. I note in this respect that Mr Collett, counsel for the Arabana People, did not (for the purposes of the determination of the present application) dispute the claims made by Mr Doolan concerning the secrecy and sensitivity of that evidence.

50    Secondly, Mr Hughston referred to the consequences or sanctions which may attend unauthorised disclosures of the sensitive material. Again, Mr Collett did not (for the purposes of the present application) contest the reality of those potential consequences, or the sincerity of Mr Doolan’s beliefs concerning them. Both these considerations are significant in the determination of the present application.

51    It would of course be a matter of serious concern to the Court if sanctions were visited on a person who had given evidence before it by reason of a giving of that evidence. That could constitute a serious contempt of the Court. However, in the present case, Mr Doolan has indicated that, if those who may hear or read the evidence are not restricted to those proposed by the Walka Wani Applicants, then the Walka Wani men with the relevant knowledge will not give that evidence. That too is a matter of concern to the Court, although a concern of a kind different from that just mentioned. That concern arises from the potential prejudice to the Court’s ability to hear all the relevant and admissible evidence bearing on the claims. As Sackville J noted in Jango at [57], “there would be prejudice to the administration of justice [if] the applicants could not adduce relevant evidence except on pain of disclosures that could cause them significant emotional and physical harm”. That is one of the very consequences which the Court seeks to avoid by taking account of the customary and cultural concerns of Aboriginal people and Torres Strait Islanders. This too is a very significant matter in the determination of the present application.

52    Thirdly, Mr Hughston submitted that [13.1]-[13.5] of the Walka Wani Applicants’ summary of proposed evidence contained a “more than adequate description” of the restricted evidence proposed to be led by the Walka Wani Applicants. That description should be sufficient to enable counsel for the Arabana People to obtain instructions. For reasons to be given shortly, I do not accept this submission.

53    Next, Mr Hughston emphasised proposed Order 5. As noted earlier, that order would require counsel for the parties, with the assistance of the experts and, in the case of counsel for the Walka Wani Applicants, in consultation with the witnesses, to use their best endeavours to agree upon whether any of the evidence given in restricted session may be made available as non-confidential transcript and whether a statement may be tendered as to the effect of the content of the remaining restricted material. Mr Hughston submitted that, if the Court was satisfied that counsel and the parties had not used their best endeavours, it could revisit the gender restriction order itself with a view to varying it, or indicate that it would give the restricted evidence no, or only limited, weight.

54    I do not regard this as a significant consideration. First, the Court will have received the restricted evidence. The agreement, or absence of agreement, regarding a non-confidential transcript or a summary concerning that evidence will not alter that fact. It is not readily apparent by what principle the Court could decide not to have regard to admissible and relevant evidence already received simply because counsel has not been able to reach agreement on the extent to which that evidence may be regarded as non-confidential or on a summary of the remaining restricted evidence. Further, even if counsel did reach an agreement on a summary, it would still be the evidence which the Court has actually received to which it would have regard. Any summary of the restricted material would not be a substitute for the evidence actually received.

55    Secondly, the prospect of counsel reaching agreement on a non-confidential transcript or on a summary of the restricted evidence will not affect the potential prejudice to the Arabana People if their counsel is unable to obtain instructions from them with respect to that evidence, at the time it is given and subsequently. The ability of the Arabana People to present evidence in answer to the evidence of the Walka Wani Applicants is likely to be significantly compromised in the circumstance.

56    Thirdly, the prospect of the Court having to determine whether counsel had used their best endeavours to agree upon a non-confidential transcript or a summary of the remaining restricted material is not attractive. It would not be desirable, for example, for the Court to hear evidence from counsel as to the endeavours which each had made to reach agreement.

57    Fourthly, on my understanding, orders of the kind of proposed Order 5 are made for a different purpose, namely, to limit the prejudice to the open justice principle by ensuring that evidence received as restricted evidence is reviewed and, to the maximum extent possible, made available publically. That is to say, it is a process which occurred subsequent to the reception of evidence and one which does not bear upon the admissibility or use of the evidence actually received.

58    As indicated, I do not regard proposed Order 5 as providing the support for the position of the Walka Wani Applicants which Mr Hughston claimed. For similar reasons, I also reject the alternative submission of the State, namely, that the Court make orders in the terms proposed by the Walka Wani Applicants but then review the orders after the evidence has been given. The difficulty with that course is that the evidence will have been given without the Arabana People having had the opportunity to test it fully in cross-examination.

59    Mr Hughston also made a submission that, if none of the Arabana men have been through the Red Ochre Law (and so be able to give the desired instructions), they may seek the assistance of someone who has. Ultimately, however, Mr Hughston withdrew that submission, accepting its inconsistency with the central proposition advanced by the Walka Wani Applicants, namely, that anyone who had, by reason of having gone through the Red Ochre Law, acquired the relevant knowledge would be subject to the very sanctions and consequences to which Mr Doolan deposed if he disclosed it without authority. In any event, it does not seem realistic to suppose that any Walka Wani man or Western Desert man would be willing in any event to provide the kind of assistance which counsel for the Arabana People seeks. Certainly, no such person was identified.

60    The matters upon which the Arabana People rely in opposing the form of the orders sought by the Walka Wani Applicants and in proposing the alternate form of orders are these:

(i)    there are significant differences between the law of the Arabana People and the law of the Walka Wani. The Arabana People dispute that the laws of the Walka Wani apply to the area of the Oodnadatta Common and the Court will have to consider closely the evidence bearing on that dispute. Counsel raised the prospect that some of the dreamings to which the evidence foreshadowed by the Walka Wani relates may also be Arabana dreamings or adaptations of them. Mr Kenny, the solicitor for the Arabana People, raised the same prospect in his affidavit. This prospect suggests by itself the detail of the Walka Wani claims will be important and therefore the probability that counsel for the Arabana People will need to take instructions concerning the evidence of the Walka Wani;

(ii)    there are no members of the Arabana People who are initiated into the law of the Walka Wani or into the law of the Western Desert Bloc of which the Walka Wani form part;

(iii)    the last Arabana man to be initiated in the Arabana People was the grandfather of Aaron Stuart, and he is now deceased;

(iv)    contrary to the claim of the Walka Wani Applicants, the information which they have provided to date is not sufficient to permit an understanding of their claims. Mr Collett referred to his own visit to the Oodnadatta Common for the purpose, amongst other things, of identifying topographical and other features to which the Walka Wani refer. He had been unable to do so. Although this was made as a submission only, Mr Hughston did not contest its reliability and I accept Mr Collett’s submission; and

(v)    in consequence, if orders are made in the form sought by the Walka Wani Applicants, the Arabana’s male solicitor and counsel will be able to be present but will not be able to seek instructions from the Arabana People in relation to the Walka Wani male gender restricted evidence. Mr Kenny, the solicitor for the Arabana People has deposed that in these circumstances, the Arabana People will be at a serious disadvantage if orders in the form proposed by the Walka Wani Applicants are made.

61    I consider that these contentions have some force.

62    The position of the Walka Wani Applicants with respect to the sufficiency of the information which they have provided to date seemed to involve some inconsistency with their contention that the Arabana People will not be “unduly” prejudiced by not being able to hear or be informed about it. I enquired what detriment the Walka Wani Applicants would suffer if the evidence concerning the tjukurpa and the Red Ochre Law did not go beyond that which they have outlined to date. Mr Hughston submitted that it is “incredibly important” that the Court hear the detail concerning the tjukurpa and the Red Ochre Law; that it went to the very connection of the Walka Wani Applicants with the claim area; and that the Court’s assessment of the strength of the connection of each group to the claim area required the Court to receive the detail. Earlier, Mr Hughston had accepted the description of the evidence as “fundamental” to the claims of the Walka Wani Applicants.

63    Therein lies the tension raised by the form of orders proposed by the Walka Wani Applicants. I am willing to accept, for the purposes of the present application, counsel’s characterisation of the importance of the evidence. However, the more important the evidence is to the Walka Wani Applicants’ case, the more significant the prejudice to the Arabana People if none of their representatives can hear the detail of the evidence or be informed of it so as to give instructions concerning it. It would be a very grave impairment of the provision of natural justice to the Arabana People if not one of their number is permitted to hear, or be informed of, evidence which is fundamental to the claims advanced in competition with their own and which could be relied upon to defeat their own claim. The impairment would arise from the effect on the ability of the Arabana men to give instructions on matters which may answer or qualify the evidence of Walka Wani men.

64    I mentioned earlier that the Walka Wani Applicants did not submit that the undertakings from Mr Stuart and Mr Strangways which the Arabana People contemplate as part of their alternative orders were of a kind which should not be accepted or about which the Court should otherwise have doubts. On the uncontested evidence of Mr Kenny, both appear to be responsible persons and able to appreciate the significance of the proposed undertakings.

65    It is a pertinent matter that the law and culture of the Walka Wani Applicants is sufficiently flexible so as to allow the disclosure of information regarding the tjukurpa and the Red Ochre Law to some persons who are not initiated as Walka Wani. The categories of persons listed in the proposed orders indicates that that is so. The proposed alternative orders involve only a modest extension of that flexibility.

Conclusion

66    In summary, I am satisfied that orders in the form proposed by the Walka Wani Applicants would prejudice unduly the Arabana People in the proceedings as they would involve an abrogation of the natural justice hearing rule with respect to matters which appear to be at the heart of the contest between the two claimant groups. As already indicated, that rule is fundamental to the provision of procedural fairness. Taking account of the cultural and customary concerns of the Walka Wani by precluding any member of the Arabana People from hearing, or being informed about, the restricted gender evidence would, in my judgment, prejudice the Arabana People unduly.

67    Accordingly, I decline to make orders in the terms proposed by the Walka Wani Applicants. I will instead make orders in the alternative terms proposed by the Arabana People.

68    It will be unfortunate if the making of the orders will have the effect that the Walka Wani Applicants decide not to lead all the evidence which they would otherwise wish to lead. However, as I indicate in the body of the reasons, the Court must also have regard to fundamental principles governing the conduct of judicial proceedings, and in this case, those principles require that at least some representatives of the Arabana People should be entitled to hear, and be informed about, the evidence to be led against them in the proceedings. The number of those persons should be limited to no more than is strictly necessary. My orders will permit two Arabana People only (Mr Stuart and Mr Strangways) to hear, or be informed about, the male gender restricted evidence. Ultimately, it will be a matter for the Walka Wani Applicants to decide, in the light of today’s orders, the evidence which they will lead in support of their application and in resistance to the application of the Arabana People.

69    The Court continues to encourage the parties to discuss means by which the cultural and customary concerns of both applicant groups may be accommodated in ways which are mutually acceptable.

70    While I consider that undertakings from Mr Stuart and from Mr Strangways in the general form proposed by the Arabana Applicant will be appropriate, I will reserve to the parties the liberty to make submissions concerning the precise form of the undertakings which should be accepted by the Court.

71    I will also grant the parties liberty to make further submissions concerning the form of the orders concerning the foreshadowed female gender restricted evidence. That is appropriate given that the Walka Wani did not present evidence specifically directed to this part of their application and because the alternative form of the orders proposed by the Arabana People concerned only male gender restricted evidence. The parties should review the position with respect to the foreshadowed female gender restricted evidence in the light of the above reasons.

72    I will hear from the parties with respect to any other matters arising out of this judgment.

Associate:

Dated:    15 August 2019

SCHEDULE OF PARTIES

SAD 38 of 2013

First Applicant

Arabana No 2 Native Title Claim (SAD38/2013)

Applicant:    JOANNE WARREN

Applicant:    PETER WATTS

Applicant:    GREG WARREN (SNR)

Applicant:    DESMOND DODD

Applicant:    WALKA WANI NO 2 NATIVE TITLE CLAIM

Applicant:    WALKA WANI NO 1 NATIVE TITLE CLAIM

Applicant:    HUEY TJAMI

Applicant:    AUDREY STEWART

Applicant:    DEAN AH CHEE

Applicant:    CHRISTINE LENNON

Second Applicant

Walka Wani Oodnadatta Native Title Claim (SAD78/2013)

Applicant:                HUEY TJAMI

Applicant:                CHRISTINE LENNON

Third Applicant

Walka Wani Oodnadatta #2 Native Title Claim (SAD220/2018)

Applicant:                    DEAN AH CHEE

Respondents:

Respondent:                AIRSERVICES AUSTRALIA

Respondent:                DOUGLAS GORDON LILLECRAPP