Hennessy, Peter --- "Common Law Protections of Private or Secret Matters" [1985] AboriginalLawB 86; (1985) 1(17) Aboriginal Law Bulletin 22

• Common Law Protections Of Private Or Secret Matters
• Editors Note

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Common Law Protections of Private or Secret Matters

by Peter Hennessy

It is rare forAboriginal people to use the general law to protect private or secret matters relating to their ceremonies, designs and other significant items of their culture. Material regarded as highly secret, according to Aboriginal customary laws, is generally only known to certain specified persons and maintaining secrecy has in the past not been difficult. There have been customary sanctions to deal with such disclosures which in certain circumstances could threaten the fabric of Aboriginal societies.[1] There have been a number of notable cases in which Aboriginal people have used the common law in order to prevent the publication of matters of a secret or private nature. The publication of this secret or sacred information was by non-Aborigines and was thus beyond Aboriginal control. For this reason using the general legal system was seen as the only way to gain protection.

Two cases involved the publication of information and material gathered by anthropologist Dr Charles Mounttord during his work in Central Australia during the 1940s. In the first case Foster v Mountford and Rigby Limited[2], the Aboriginal plaintiff sought an injunction to prohibit the publication within the Northern Territory of Dr Mounttord's book Nomads of the Australian Desert. Justice Muirhead found:

the plaintiff’s concern probably goes basically to the fact that the revelation of the secrets to their women, children and uninitiated men may undermine the social and religious stability of their hard-pressed community. Despite Dr Mountford's prognosis that their life and beliefs 'are so quickly vanishing', there is still an urgent desire in these peopleto preserve those things, their land and their indentity ... [3]

He granted an injunction restraining further publication in the Northern Territory on the basis of a possible breach of confidence if the material in the book was published. In Pitjantjatjara Council and Nganingu v Lowe and Bender[4] action was taken to restrain the sale or display of certain lantern slides taken by Dr Mountford. The defendants were required to make available for inspection by representatives of the Pitjantjatjara Council certain of the slides which dealt with secret or sacred material it had been argued that the Information and knowledge had only been made available to Or Mountford on the basis that It would not be made public. Ownership of the slides regarded by the PIQantjaljara representatives as of a secret or sacred nature were vested in the Council on behalf of the Pitjantjatjara, Yankuntjatjara and Ngaanyatjara peoples.[5]

In a more recent case in Central Australia an action was brought on behalf of five Aboriginal people, the traditional owners and inhabitants of Welatye-Therre, a place of special significance to Aboriginal people. An injunction was sought restraining the Centralian Advocate from publishlng certain parts of a story relating to a fire at Welalye-There in which a man and child had died. Justice Muirhead in the Northern Territory Supreme Court granted an interim injunction to prevent publication of a story in the Centrallan Advocate because has potentially defamatory and monetary compensation would be irrelevant. The case also involved questions of privacy and the disclosure of information of a sacred or secret nature. The result was that the paper which had already been printed could not be distributed and a reprint of the edition had to be done. Nationwide Publishing, the publisher of the Centralian Advocate unsuccessfully appealed to the Full Federal Court.[6] As an interesting sideline to this particular incident, the Central Australian Aboriginal Legal Aid Service filed an official complaint with the Australian Press Council about the later publication in the Centralian Advocate of aspects of the fire which Included photos of the scene and the names of the deceased persons. These were both very upsetting to Aboriginal people in the area and requests had been made notto publish this information. The Press Council refused to accept the complaint on the basis that no law or ethical standards had been breached.

Significantly all of these cases have Involved the Aboriginal people of Central Australia. It may be that there is a greater awareness by these people of the potential of the common law to avail them to protect their privacy and secret aspects of their culture. Their successes have no doubt confirmed this it may also reflect the strength of operation of Aboriginal customary laws in Central Australia and the concern of Aboriginal people to protect their culture.

Yet the scope of the common law in this regard is limited. The fact that there have been so few cases brought byAboriginal people is a reflection of this. If further protections are sought by Aboriginal people then legislation may be the only answer. Some aspects of Aboriginal culture are already protected by State legislation covering Aboriginal relics and sacred sites and the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act (Cth) 1984 which covers sites and objects. Protection of the indigenous and national cultural heritage is increasingly an issue at the international level.[7] Australia is currently giving consideration to the ratification of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1979.[8] The Commonwealth is also considering the Implementation and the recommendations of a Working Party under the chairship of the Department of Home Affairs on the protection of Aboriginal Folklore. The Working Party defined three abuses to be controlled. These are the use of sacred secret material other than in accordance with custom, the mutilation, destruction, debasement or export of items of folklore, and the use of items of folklore for commercial gain without payment of remuneration to traditional owners.[9]

Protection of culture is a matter of major importance to Aboriginal people and special legislative protection is justified if existing common law protections are inadequate.

Editors Note

Readers should refer to Graeme Neale's article 'Keeping Secrets Secret: Legal Protection for Secret/Sacred items of Aboriginal Culture', (1982) 5AboriginalLB 1. Graeme covers extracts from Muirhead J In regards to Foster v Mountford and Rigby Ltd covering Pitjantjatjara Council and Nganingu v Lowe and Bender, Onus v Alcoa of Australia Ltd. In addition he investigates ‘secrecy and the Aboriginal Land Rights (NT) Act 1976’.

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[1] For example in R v Skinny Jack and others(Unreported, SA Supreme Court, 13 July 1964) one of the reasons given for the killing of an Aboriginal person by members of his tribe was that he sold sacred objects, contrary to Aboriginal customary laws.

[2] [1908] ArgusLawRp 1; (1976) 14 ALR 17.

[3] ibid, 73.

[4] (1982) 4 AboriginalLB 11.

[5] (1982) 4 AboriginalLB 11.Tatx in an article entitled 'Aborigines and Civil Law' In P. Hanks and B. Keon-Cohen, Aborigines and the Law, George Allen and Unwin, Sydney, 1982, refers to action taken to prevent the circulation of 2 editions of PIX magazine containing photographs of secret Aranda ceremonies which had been sold by Professor Strehlow too German Magazine. He also refers to an action commenced against photographer Ben Cropp In 1979 to prevent the publication of a sacred burial site. It appears that neither of these cases proceeded to a court hearing.

[6] See Nationwide Publishing Limited v Furber, unreported Full Federal Court, 13 April 1984.

[7] See M. Bedjaoui, Special Rapporteur, 'Eleventh Report on Succession of States in respect of matters other than Treaties, United Nations International Law Commission Yearbook, 1979, vol 11, pt 1, 78-82 for an accountof international development in this field.

[8] 823 UNITS 231.

[9] Working Partyon the Protection of Aboriginal Folklore. Report, Department of Home Affairs and Environment, Canberra, 4 December 1981.