AustLII Home | Databases | WorldLII | Search | Feedback

Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
You are here:  AustLII >> Databases >> Aboriginal Law Bulletin >> 1994 >> [1994] AboriginalLawB 46

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Willheim, Ernst --- "Western Australia & Others v Minister for Aboriginal &Torres Strait Islander Affairs" [1994] AboriginalLawB 46; (1994) 3(69) Aboriginal Law Bulletin 17


Western Australia & Others v Minister for Aboriginal &Torres Strait Islander Affairs

Federal Court of Australia, Carr J.

29 July 1994

by Ernst Willheim

This appears to be the first case in which the Federal Court has made an Order effectively preventing a member of the legal profession having access to evidence on gender related grounds of Aboriginal cultural sensitivity. The particular evidence related to a site used for male initiation ceremonies. According to Aboriginal cultural tradition, that evidence should not be disclosed to women of uninitiated Aboriginal men. The applicant's counsel, and the applicant's instructing solicitor, were women. Carr J made an order requiring production of the relevant evidence to the applicant's counsel and solicitors, save that only one such person shall be female. The result was that either the applicant's counsel or the applicant's instructing solicitor would not be able to see the document.

The issue arose in the course of a challenge brought by the State of Western Australia and two Western Australian Ministers, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) to the validity of emergency and permanent declarations made by the (Commonwealth) Minister for Aboriginal and Torres Strait Islander Affairs under ss9 and 10 of the Aboriginal and Torres Strait Islander Heritage (Protection) Act 1984 (Cth). The effect of the Commonwealth Minister's declarations was to prevent the extension of a crocodile farm on a site near Broome. (see AboriginalLB 67/16.) In their applications for emergency and permanent declarations under the Act, the Yawuru Aboriginal people claimed that the site was a traditional Aboriginal area associated with male initiation ceremonies and other traditional practices. The applicants challenged the validity of the making of the declaration on a wide range of grounds including breach of natural justice, no evidence, failure to take relevant considerations into account and irrelevant considerations.

In the course of giving discovery, the respondent (for convenience I shall refer to the parties as the Commonwealth and the State) disclosed a number of anthropological reports, and affidavits by Aboriginal persons, which had been provided to him on the condition that they not be reproduced and not be seen by women or by uninitiated Aboriginal men. The Commonwealth and the State were able to reach agreement on access to most of this material on the basis of agreed undertakings as to confidentiality, but in relation to one anthropological report (the Sullivan Report), which referred extensivelyy to affidavits by Aboriginal elders, no agreement could be reached.

Late on Wednesday, 27 July 1994 the State made application to the Federal Court for orders requiring production of the Sullivan Report to its counsel, solicitors, and consulting anthropologists. The application was heard on 29 July. In the course of the hearing, the State sought leave to amend its application to seek production to the Attorney-General of the State (also a woman). The application was opposed by the Commonwealth and by the Kimberley Land Council on behalf of the Yawuru which, with Commonwealth support, obtained leave to intervene.

In opposing the application, the Commonwealth argued that the Court had power to make orders restricting access to documents dealing with culturally sensitive Aboriginal material. This power was available both as an aspect of the law relating to public interest privilege and pursuant to s27 of the Aboriginal & Torres Strait Islander Heritage (Protection) Act 1984 (Cth) which provides that in any proceedings in a court arising under the Act, the court may, having regard to the interests of justice and the interests of Aboriginal tradition, order the exclusion of the public or of the persons specified in the order from a sitting of the court and make such orders as it thinks fit for the purpose of preventing or limiting the disclosure of information with respect to the proceedings. The Commonwealth submitted that in deciding whether to make such orders the Court should apply a balancing test, balancing the public interest in maintaining the confidentiality of sensitive Aboriginal information against the interests in the administration of justice. It was submitted that in applying that test to the particular case, the prejudice from disclosure to women of the material in issue was substantial and that in the circumstance of the particular case non-disclosure to the applicant's female lawyers would cause no prejudice or little prejudice to the administration of justice.

The Commonwealth also referred to its submission in the primary ADJR proceedings that the applicant State did not have standing to challenge the Commonwealth's decision and that no order should be made that had the potential seriously to prejudice the Yawuru until the standing of the State was determined.

In support of its claim that public interest privilege applied, the Commonwealth referred to Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, Young v Quin[1985] FCA 18; (1984-1985) 59 ALR 225 and Hilton v Wells [1985] FCA 100; (1984-1985) 59 ALR 281. It was submitted that there was no doubt that the public interest privilege was available and that the privilege may arise on either of two bases, that the information was inherently confidential (it was claimed that information concerning secret Aboriginal initiation ceremonies was inherently confidential) or because, if the information were disclosed, that kind of information would not be available in the future.

The Commonwealth also submitted that a claim to public interest immunity did not arise inter partes. It was the public interest which was raised. The claim did not have to be made by a party. The Court itself may be obliged to prevent disclosure of documents even though no claim for public interest immunity had been made if it is clear to the Court that there may be serious injury to the national interest (Sankey v Whitlam at 44, 58, 59, 60, 68; Young v Quin at 227-8, Hilton v Wells at 292). As the interest sought to be protected here was an Aboriginal interest rather than a direct Commonwealth interest, it was appropriate that the Yawuru be given leave to intervene.

In support of the proposition that public interest immunity was available, the Commonwealth argued that public interest immunity extended to Aboriginal secrets. Reliance was placed on passages in Sankey v Whitlam that the categories of public interest were not closed, (at 60) and Bowen CJ and Woodward J in Aboriginal Sacred Sites Protection Minister v Maurice (1986) 65 ALR 247,252,255-256. Woodward J,had expressed the opinion that “a fresh category of public interest immunity should be recognised, covering secret and sacred Aboriginal information and beliefs” (at 256). The Commonwealth referred also to a number of earlier precedents.

These last two examples were relied on to counter argument by the State that the Commonwealth's submissions discriminated against women.

The position was complicated by the fact that the Sullivan Report, to which access was sought, had been filed in earlier, common law, applications for interlocutory injunctions brought by the Yawuru in the Supreme Court and the Federal Court and the State's female counsel and female instructing solicitor had had access to the report in those proceedings. While orders limiting general access had been obtained, those orders did not prevent access by female officers of the Court.

In issue also was the claim of prejudice to the State if access to the document was refused a week before the trial. The Commonwealth's response was that the sensitivity of the document had been disclosed with the discovery affidavit (17 June 1994) and that the Australian Government Solicitor had personally telephoned the Western Australian Crown Solicitor on 21 June 1994 to draw attention to the sensitivity of some of the documents. The Commonwealth's position was however weakened by the fact that, in ,subsequent negotiations between the parties, the Commonwealth appeared to have :indicated that agreement on disclosure was likely to be reached.

Because the application was brought on short notice, the Commonwealth was able to provide only limited affidavit evidence in support of its claim but the evidence provided included affidavits from two Aboriginal elders and from an anthropologist. One of the Aboriginal affidavits included the following statement:

these passages concern men's business and should not be shown and told to women or uninitiated men. This is the Law and it is dangerous to break the Law. If women have already seen or heard about this business that is bad. But it must stop. The Law is broken every time this business is seen or heard by them.

The Commonwealth relied heavily on the last sentence to support the view that access should be restricted notwithstanding that access had been provided in the earlier proceedings.

The Commonwealth argued also that disclosure of the report would lead to a "drying up" of Aboriginal information and would inhibit the effective operation of the Act. The confidence of Aboriginal people in providing, in support of applications for declarations under ss9 and 10 of the Commonwealth Act, any culturally sensitive information would be eroded if confidentiality could not be guaranteed. Aboriginal people would be inhibited from making applications for declarations and from placing supporting material before the Minister. The effective operation of the Act would therefore be prejudiced.

Because of the urgency of the matter (trial was only a few days away) Can J delivered a short ex tempore judgement immediately after the close of submissions. He referred to the need to reconcile several competing interests; the public interest in achieving justice between the parties to litigation, including proper preparation and presentation of each party's case, sometimes described as the public interest that the administration of justice will not be frustrated (by the withholding of documents which must be produced if justice is to be done), secondly, that in certain circumstances sources of information might dry up if that information, or the sources of information which are important for the discharge of public functions might dry up if that information, or the sources of that information, are not given adequate protection, confidentiality as a relevant consideration, the interest of the Yawuru Peoples in not having sensitive information disclosed and the public interest that women should not be subject to discrimination. He had regard to the extent to which the material had already been made available for inspection in earlier proceedings and the evidence that continued production to women was of concern to the Yawuru Peoples. The order which he made was intended to reflect the Court's appreciation of these concerns. Carr J read the Sullivan Report himself and weighing up these factors considered that the interests of justice required at least one of the State's counsel and instructing solicitor have access to it. He considered that by excluding one of the applicant's counsel and solicitor there should be no real prejudice to the preparation and presentation of the applicant's case and at the same time the interests of the Yawuru Peoples were appropriately protected to the fullest extent possible in all the circumstances.

After weighing these various conflicting interests, Carr J ordered that the Sullivan Report be produced by 10.30am on 2 August for inspection by the State's counsel and solicitors save that only one of such persons shall be female. The effect was that only one of the two women on the State's legal team (one female counsel, one female instructing solicitor) was able to inspect thee document.

In the course of oral argument counsel for the State had also sought leave to amend the State's application to include an order for production to the Attorney-General of the State (who was also a woman). In response, counsel for the Commonwealth submitted that the application was made without notice and that he had no instructions. However, it appeared unlikely that there would be any need for the Attorney-General personally to have access to detailed items of evidence in litigation of this kind. Further, it was understood that there were precedents for alternative arrangements, eg., in unrelated litigation in Western Australia, where there was thought to be a conflict of interest, the Western Australian Attorney-General had arranged for instructions to be given by the Solicitor-General as Second Law Officer. Alternatively, arrangements could be made for another Minister, not being female, to examine the documents on the Attorney-General's behalf. Carr J did not grant the State's application but ordered that the State have liberty to apply in respect of access to the Attorney-General for Western Australia.

The case is important because it establishes that, where appropriate evidence is available, orders restricting disclosure of culturally sensitive Aboriginal information (eg. men's business which should not be disclosed to women or women's business that should not be disclosed to men) may extend to prevent disclosure to legal practitioners. Lawyers acting for Aboriginal clients in matters involving culturally sensitive Aboriginal materials need to be aware of the possibility of seeking such orders to protect their client's interests. Lawyers acting either for or against Aboriginal persons in litigation involving Aboriginal material that is culturally sensitive on gender related grounds need to be alert to the need to structure their legal teams so that, in the event of such orders being made, they will not be disadvantaged.

It is worth noting that Carr J referred to evidence of contact at a very senior level between the lawyers for the two parties. The Australian Government Solicitor had telephoned the Crown Solicitor for the State of Western Australian and discussed with him the problem that certain documents should not be seen by women or uninitiated men. That approach seemed to be well received by the Crown Solicitor for the State. Can J went on to say that he regarded that contact and the response as being particularly appropriate and constructive. It appears desirable, therefore, that lawyers acting for Aboriginal clients in matters involving culturally sensitive Aboriginal material draw problems of this kind to the attention of opposing solicitors at an early stage.

It is worth noting also that Carr J rejected the Commonwealth's arguments that the restrictions sought did not amount to discrimination against women practitioners (the Commonwealth argued, drawing on Toohey J's decision in the Daly River (Malak) Land Claim Report, that in the reverse situation orders could be made restricting access to women). No reference was made to the Commonwealth's submission that access that infringed Aboriginal cutural sensitivites should not be given until the standing of the State to bring the proceedings had been resolved.

-This casenote is written in a personal capacity and does not purport to reflect the views of the Commonwealth Attorney-Generals Department or of the Commonwealth.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1994/46.html