Aboriginal Sacred Sites Protection Authority v Maurice

CATCHWORDS

Administrative

law

- Application for order

of review and

prerogative

writs

against

Aboriginal

Lands

Commissioner

Ob~ection

to produce documents required by order under s.54

Land Riqhts Act overruled by Commissioner.

Evidence - Public

interest

immunuity

- Sacred

Aboriginal

information -

Whether exempt from disclosure

- Whether public

interest immunity attaches to material obtained by or on behalf

Aboriginal

Sacred

Sites

Protectlon

Authority

Whether

balancing exercise properly conducted

- Factors to be considered.

Evidence -

Confidentiality - Documents

prepared

anthropologists - Whether a ground for non-disclosure.

Aboriqinal Land Riqhts (Northern Territory) Act	1976, ss.50, 51,
54, 73(1).

Aboriqinal Sacred Sites Act (N.T.)	1978,	ss.3, 13, 24, 25, 26,
27, 28, 31, 32.

Administrative Decisions (Judicial Review) Act

1977, s.5.

Judiciarv Act

1903, s.39B.

Northern Territory (Self-Government) Act

1978

THE ABORIGINAL

SACRED

SITES

PROTECTION

AUTHORITY

HONOURABLE

MICHAEL

DAVID

ANDREW

MAURICE.

ABORIGINAL

AND

COMMISSIONER & ORS.

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND

CERTIORARI AGAINST THE

HONOURABLE MICHAEL DAVID ANDREW MAURICE,

ABORIGINAL LAND COMMISSIONER & ORS. AND IN THE MA!IYER OF THE

WARUMUNGU LAND CLAIM,	EX PARTE ABORIGINAL SACRED SITES PROTECTION
AUTHORITY

Bowen C.J., Woodward and Toohey JJ.

27 March 1986

Sydney

IN THE FEDEWU; COURT OF AUSTRALIA

)

VICTORIA DISTRICT REGISTRY

)

No.

237

of 1985

GENERAL DIVISION BETWEEN:

THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY

Applicant

AND THE HONOURABLE MICHAEL DAVID ANDREW MAURICE,

ABORIGINAL LAND COMMISSIONER

First Respondent

THE ATTORNEY GENERAL FOR

THE

THE NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

THE CENTRAL LAND COUNCIL

Third Respondent

ROBERT BRUCE REYBURN

Fourth Respondent

and

IN THE MATTER OF THE WARUMUNGU LAND CLAIM

IN THE FJZDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G336 of 1985

GENERAL DIVISION

)

IN THE MATTER of an Application

for a Writs of Prohibition

and Certiorari against

THE HONOURABLE MICHAEL

DAVID ANDREW MAURICE. ABORIGINAL LAND COMMISSIONER

First Respondent

THE CENTRAL LAND COUNCIL

Second Respondent

ROBERT BRUCE REYBURN

Third Respondent

AND IN

THE MATTER OF THE WARUMUNGU LAND CLAIM

M PARTE: ABORIGINAL SACRED SITES PROTECTION AUTHORITY

Prosecutor

MINUTE OF ORDER

JUDGES MAKING ORDER

: Bowen C.J., Woodward and Toohey JJ.

DATE

: 27 March

1986

PLACE

: Sydney

THE COURT ORDERS THAT:

1. The application for judicial review be dismissed.

The order nisi

for writs of

prohibition and certiorari be

discharged.

The parties have liberty

to apply on the question of

costs

within 21 days.

In the absence

of any application there be no order as to

costs.

IN THE FEDERAL COURT OF AUSTRALIA

)

VICTORIA DISTRICT REGISTRY

No.

237

of 1985

GENERAL DIVISION BETWEEN :

THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY

Applicant

AND THE HONOURABLE MICHAEL DAVID ANDREW MAURICE,

ABORIGINAL LAND COMMISSIONER

First Respondent

THE ATTORNEY GENERAL FOR

THE

THE NORTHERN TERRITORY

OF AUSTRALIA

Second Respondent

THE CENTRAL- LAND COUNCIL

Third Respondent

ROBERT BRUCE REYBURN

Fourth Respondent

and

IN THE MATTER OF THE WARUMUNGU LAND CLAIM

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G336 of 1985

GENERAL DIVISION

)

IN THE MATTER of an Application for

Writs of Prohibition

and Certiorari against

THE HONOURABLE MICHAEL

DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER

First Respondent

THE CENTRAL LAND COUNCIL

Second Respondent

ROBERT BRUCE REYBURN

Third Respondent

AND IN

THE MATTER OF THE WARUMUNGU LAND CLAIM

EX PARTE: ABORIGINAL SACRED SITES PROTECTION AUTHORITY

Prosecutor

C O W :	Bowen C.J., Woodward and Toohey JJ.
DATE:	27 March 1986

REASONS FOR JUDGMENT

BOWEN C.J.

The facts and the relevant enactments are set forth in

the judgment of Toohey J.

I shall not repeat them.

In the course

of hearing the Warumungu Land Claim under

the Aboriqinal Land Riqhts (Northern Territory) Act

1976

(Cth)

the Aborigmal Land Commissioner (Maurice J.) issued orders under

S . 54 os that Act

for the production

of certain documents prepared

by anthropologists and others in connection with a claim to have

sacred sites in the general area of

the land claim recorded in

the register kept by the Sacred Sites Authority under the

Aborisinal Sacred Sites Act of the Northern Territory. The

orders

were

directed

individuals

whom

the

Commissloner

believed "to be capable of giving information relating to a

matter being inquired into by the Commissioner", namely, the

Waramungu Land Claim.

The Sacred

Sites

Authority

appeared

before

the

Commissloner and resisted the production of documents prepared by

its employees

or persons under contract to it in connection with

the

application

have

sacred

sites

recorded

under

the

Aborisinal Sacred Sites Act.

The

ground of its opposltion was

that of summary way,

public

interest

immunity.

Stating

the

matter

it claimed that the information in question was

gathered under a promise it would be kept confidential; that the

Aboriginal

custodians of the

information

were

bound

under

Aboriginal law and custom to keep the information confidential;

that production and disclosure in the Land Claim proceedings

would cause dismay and resentment: that for the future the

flow

of information

might

reasonably

expected

greatly

reduced; and, the standing and working	of the Sacred Sites
Authority would be gravely prejudiced.

Maurice J. held that there was insufficient basis for a claim of public interest immunity,

but that if he were wrong in

that view, it would be necessary

to balance the public interest

in favour of non-disclosure against the public interest in favour

of disclosure.

He decided on balance in favour

of disclosure

indicating production would occur while he was sitting in camera;

that only himself, his associate, counsel assisting, counsel for

the Attorney-General of the Northern Territory, possibly his

consultant anthropologist and the researcher who gathered the

material would be present. They would not be permitted to use

any of the information

so learned for any purpose other than the

land

claim.

He invited

counsel

agree

appropriate

protective

measures

and

the

mechanical

arrangements

for

inspection.

The Sacred Sites Authority brought proceedings in this Court under the Administrative Decisions (Judicial Review) Act

of Attorney-General for the Northern Territorv v. Kearney

the

Judiciarv

Act

1903

(see

1977 and

under

s.39B

(1984) 55

A.L.R.

545) challenging the decision of the Commissioner. The

Attorney-General for the Northern Territory was joined

respondent. Also joined at various stages were the Central Land

Council, a body established under the Land Rishts Act, and Mr

R.B. Reyburn, one of the researchers who received a

s.54 notice.

The Central Land Council which was joined to represent the interests of the claimants before the Land Commissioner

indicated its main concern was to have the land claim dealt with

without further delay. It did not oppose the production and

disclosure of the material in question. Indeed, some

the

material had since been voluntarily disclosed. It appeared there

was

substantial

overlap

between

those

aboriginals

who

were

claimants to the land and those who were custodians of the sacred

sites information.' Mr Reyburn supported

the challenge made by

the Sacred Sites Authority to the decision of Maurice

His

counsel further argued that the Commissioner

as a matter of

discretion should have held that confidential material gathered

by anthropologists did not have to be produced.

The

principal

questions

raised

are

whether

public

interest immunity attaches to material obtained by or on behalf

of the Sacred Sites Authority and, if

so, whether on balance the

material in the present case should be produced and disclosed	in
the land claim proceedings before the Commissioner.

This is an area

of the law which has been developing in

recent years. It is not

so long smce

the Courts treated the

certificate or affidavit of

a Minister taking objection to

production on the ground it would

be injurious to the public

interest as conclusive (Duncan v Cammell Laird & Co.

(1942) A . C .

624). However, this decision

was

reviewed and not followed in

Conwav v. Rimmer (1968) A.C. 910. It was there held it is a

matter for the Court to decide whether the material should be

produced. Documents are commonly referred to as qualifying for

the immunity because they fall into a particular class such as

cabinet papers or because of their contents such as defence or

security documents. Some documents may answer both descriptions.

On some topics such as the safety

or security of the country the

views of the Executive,

which carries the responsibility, will be

given great weight; in such bases the balancing by the Court of

the public interest in favour of disclosure against the public

interest in favour of confidentiality may be little more than	a
formality. In other cases the factors in favour of disclosure

may be strong. For example, the possibility

of establishing the

innocence of an individual in a criminal case, weighs heavily. The smallness of the damage done to the public interest on the other hand may be significant, particularly where practical

restrictions	can	be	placed	upon	the	extent	of	the	public
disclosure.

It is to be noted that there is

now no

absolute rlght to

insist on non-disclosure upon the ground of public interest

immunity. Whether it be

a case of a class objection

or an

objection on the ground of content, the objection is conditional

and depends upon the decision of the Court (Sankev	v. Whitlam
(1978) 142 C.L.R. 1 at p.38 and p.58).

Whether these rules apply to proceedings other than

Court proceedings is not entirely clear. In the present case, it was common ground that they applied to proceedings before the

Commissioner.

I do not think any useful purpose would be served

by canvassing that issue.

The main difficulty in the present cases arises from the

character of the claim for public interest immunity. The feature

confldentiality

relation

sacred

sltes

involving

Aboriginal	law	and	custom	is	not	likely	to	arise	outside
Australia.

With class documents such

as cabinet minutes, minutes of

discussion between heads

of departments, papers brought into

existence for the purpose of preparing a submission to cabinet and, indeed, documents which relate to the framing of government policy at a high level, there is not much difficulty (see Sankev

v. Whitlam (1978) 142 C.L.R.

1 at p.39).

These documents relate

to government at a high level. The present case does not fall

into that category. On the other hand it must be said that

progressively in recent years governments have created statutory

bodies to perform functions of various kinds, which they could

have performed directly through an appropriate department of

state. In this case if the Northern Territory Government had

undertaken the functions of recording Aboriginal sacred sites by

means of a department of state, the matter may have been regarded

as closer to central government.

As against this the fact that statutory bodies have been

created in such vast profusion to perform various functions of government means a decision that such a body can claim public interest immunity may have wide ramifications. Nevertheless,

some decisions that public interest immunity may attach in such

cases have Secretary (1973) A.C. 388;

been

given.

See

for

example:

Roqers

Home

A. Crompton Limited v. Customs &

Excise

Commissioners

(No.2)

(1974)

A.C.

405;

National

Societv for the Prevention of Cruelty to Children (1978) A.C.

171; Alister v. B. (1983) 50 A.L.R. 41.

It is not easy to isolate the factors which are

critical importance in deciding whether a

particular case not at

the

higher

levels

government

attracts

the

immunity.

Confidentiality of the material is not alone sufficient though

may be of significance.

(See Alfred Gompton Amusement Machines

Ltd. v. Customs & Excise Commissioners (No. 2) (1974) A.C. 405 at

p.433; Science Research Council v. Nasse

(1980) A.C. 1028 at

p.1065; and, Sankey v. Whitlam (1978) 142

C.L.R. l at pp.42-43).

The

fact

that

disclosure

may

dry

source

information is also of some significance. The protection of

informers against disclosure has always been an important factor.

Informers providing material to law enforcement officers have

always been a recognized as being entitled to have their identity

protected

unless

necessary

disclosed

in proving

the

innocence of an accused person

( M a r k s v. Bevfus (1890) 25

Q.B.D.

494.

This has been extended to protection

of informers supplying

material to the Gaming Board (Roqers

Home Secretary (1973)

A.C. 388) and to

an informer reporting child abuse to the

National Society for the Prevention of Cruelty to Children

( Q

National Societv for the Prevention of Crueltv to Children

(1978)

A.C.

171).

The reason for this rule regarding informers appears

to have two bases, first, that disclosure would cause the

flow of

information to

dry up and, secondly, disclosure may place the

informer's health at risk.

A second strand of reasoning in

D's

Case (supra) lays stress upon the protective attitude	of	the
Courts towards the welfare of children.

There is some suggestion that if the information is

necessary for a statutory body to perform its functions whether

these involve prosecution of offenders

not, that informers

will be protected but this is not entirely clear.

In the present case

it appears:

1. To perform

its

tatutory

functions

the

Sacred

Sites

Authority needs to be able to offer Aboriginal suppliers of information the assurance that the information supplied

will be kept wholly

or substantially confidential.

If breach of such assurances takes place it may reasonably decrease or dry up.

The Aboriginal custodians who supplied the information may disclosed and may suffer some detriment as a consequence.

4. The Sacred Sites Authority has amongst its functions the

function

of enforcing the Aboriqinal Sacred Sites Act

(N.T.)

(s.13(e)) and prosecution

for an offence against

this law may be made upon the complaint of the Authority

(5.32).

The particular information referred to in these

appeals was supplied to enable the Authority to discharge

its function of recording sacred sites

(s.l3(b) and

(c))

and was not supplied to facilitate prosecution for some

offence .

5. Aboriginals

are

people

with

whom

the

government

has

special relationship, with a protective element In it.

10.

The question is whether the Authority is entitled to

take objection to the production and disclosure

of the material

supplied by Aboriginals in confidence in relation to sacred sites

upon .the ground of

public interest immunity. The categories

public interest are not closed

( D ' s

Case supra at p.230). But

one should be cautious in extending heads of claim to

withhold

evidence required for the proper administration

justice.

Certainly a willingness to extend established principles by

analogy and legitimate extrapolation is an acceptable ( D ' s

Case

supra at p.226) although,	I	would think, not the only method	of
proceeding.

In the result

I have come

to the conclusion that the

Authority is entitled to take objection on the ground of public interest immunity.

This, of course,

does

not

mean

necessarily

entitled to have its objection upheld. But it does mean its

objection should not be dismissed as being without foundation.

It is entitled to have the detriment to the public interest

involved

disclosure

weighed

the

balance

against

the

detriment to the public Interest involved in non-disclosure.

!I'he Commissioner,

after

reviewing

the

authorities,

decided that the activities in relation to the Authority were not

such as to attract the doctrine of public interest immunity. However, he went on to consider the position assuming the public

11.

interest in the performance by the Authority of its registration

function

was

sufficient

attract

the

doctrine

public

interest immunity. Upon balancing that interest against what he considered to be other relevant considerations he stated he was still of the view that the records ought to be produced. I do

not consider any error was shown in his Honour's process

weighing the countervailing elements of

public interest. I agree

with his conclusion that the records should be produced and

disclosed in the restricted fashion set forth in his reasons for

judgment.

It was argued

by counsel for Mr Reyburn that as a matter

of discretion the Commissioner should have held that confidential

material gathered by anthropologists

did not have to be produced.

However, in my opinion, no error was shown to have occurred in

the way in which Maurice J. dealt

with this material.

One final matter should

be mentioned. At the hearing

before us an

affidavit of Wenten Rubuntja sworn 9 January

1986

was tendered by counsel

f o r

the Authority. It dealt with the

likely reaction

information imparted in confidence to the researchers engaged by

the Authority be publicly disclosed. It was objected to by

counsel for the Attorney- General of the Northern Territory,

Aboriginal

custodians

and

others

should

except as to an annexure consisting

of a copy of a letter

received by the Authority from one of its researchers, Jane

Simpson. The affidavit was admitted subject to objection.

consider we should

now decline to uphold the objection.

12.

When a so-called “appeal” is from an executive tribunal,

the hearing in the Federal Court is a hearlng in its original

jurisdiction. In an application under the Judicial Review Act	or
upon an application for a prerogative writ under s.39B of the

Judiciary Act the parties may produce such relevant evidence

they wish in support of their case. The evidence at the end of

the day may or

may not be the same as that before the tribunal

whose

decision

under

“appeal“ (see Ex parte Australian

Sportinq Club Limited; Re

Dash (1947) 47 S.R. (N.S.W.)

283;

Federal Commissioner of Taxation v. Lewis Berser & Sons (Aust.) Limited (1927) 39 C.L.R. 468 at 469; Builder‘s Licensinq Board

v. Sperwav Constructions (Svd.) Pty. Limited

(1976) 135 C.L.R.

616 at

621).

Where

the

tribunal

not

bound

the

rules

evidence,

there

may

material

which

has

taken

into

consideration

making

its

decision

which

would

not

admissible in a court of law.

The Federal Court may receive such

material not in proof of the facts, with which it deals but as

disclosing what material the tribunal had and considered in

making its decision. Again the Federal Court will receive any

fresh evidence relevant to the exercise

its discretion in

deciding what orders it should make (see Vansedal-Nielsen

Smith (1980) 33 A.L.R.

144 at 151).

Having admitted the affidavit of Wenten Rubuntja, I

should mention that	my opinion in this case would be the same
with or without it.

13.

In the result, I am of opinion the application for

review should be

dismissed

and the order nisi for writs

prohibition and certiorari should

be discharged.

The parties

should be given the opportunity to argue the question of

costs.

In this regard they should have liberty to apply within

21 days,

otherwise no order for costs

should be made.

IN THE FEDERAL COURT OF AUSTRALIA

)

VICTORIA DISTRICT REGISTRY

)	No. VG 237 of 1985

)

GENERAL DIVISION

)

BETWEEN:

THE ABORIGINAL SACRED

SITES PROTECTION AUTHORITY

Applicant

AND THE HONOURABLE MICHAEL DAVID ANDREW MAURICE.

ABORIGINAL LAND COMMISSIONER

First Respondent

THE ATTORNEY GENERAL

FOR THE

NORTHERN TERRITORY

OF AUSTRALIA

Second Respondent

THE CENTRAL LAND COUNCIL

Third Respondent

ROBERT BRUCE REYBURN

Fourth Respondent

and

IN THE MATTER OF THE WARUMUNGU LAND CLAIM

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G336 of 1985

)

GENERAL DIVISION

)

IN THE MArrER of an Application for a Writs of Prohibition

and Certiorari against

THE HONOURABLE MICHAEL

DAVID ANDREW MAURICE, ABORIGINAL

L ND COMMISSIONER

First Respondent

THE CENTRAL LAND COUNCIL

Second Respondent

ROBERT BRUCE REYBURN

Third Respondent

AND IN THE MATTER OF THE WARUMUNGU LAND CLAIM

EX PARTE: ABORIGINAL SACRED SITES PROTECTION AUTHORITY

Prosecutor

COURT: Bowen CJ, Woodward &	.	Toohey JJ.
m: 27 March 1986

PLACE:

Sydney

REASONS FOR JUDGMENT

WOODWARD J.

These actions, along

with two other related actions

heard immediately afterwards, which are the subject

of a separate

judgment,

raise

interesting

questions

of privilege,

covering

public interest immunity (formerly known as Crown privilege) and

legal professional privilege,	as well as more general questions	of
confidentiality.

- 2 -

They all arlse from a proceeding known

as the Warumungu

Land Claim ("the Land Claim"), which is before Maurice J, sitting as an Aboriglnal Land Commissioner ("the Commissioner") pursuant

to the Aboriqinal Land Riqhts (Northern Territory) Act

1976 (Cth)

( "the Land Rights

Act"

) .

The functions and powers of the

Commissioner have been fully described in the draft judgment of Toohey J, which I have had the advantage of reading, and I do not repeat them here.

Maurice J issued an order pursuant to

s .54 of that Act

for the production of a large number of documents, brought into

existence or gathered, over a number of years, by anthropologists,

linguists and

others, which might tend to throw light

on the

validity

the

claim.

Some

were

created

collected

specifically to assist the Aboriqinal claimants in the formulation

of their claim. Others were due to the efforts of the Aboriginal

Sacred Sites Protection Authority

("the Authority")

to record

information about sacred sites in the area the

sub~ect

of the

claim

and

immediately

adjacent

lands.

(The

role

the

Authority is also described in some detail by Toohey J.) Others agam represented work done by investigators arising from their

personal or	professional interests in the people and the land
concerned.

Before Maurice J, the Authority argued that the work of

its employees and contractors was protected by public interest

immunity, and any balancing of conflicting public interests,

called for by the application of that principle, should be

resolved in its favour. Those arguments were rejected by

- 3 -

Maurice J, and the Authority wishes to cevlew that decision before

this Court

- either by application of the Administrative Decisions

(Judicial Review) Act

1977 ("the ADJR Act") or by way of

prerogative writ for prohibition and certiorari, issued pursuant

to s.39B of the Judiciary Act

1903.

The question of legal professional privilege, raised in

actions by the Attorney-General

of the Northern Territory,

will be

dealt with in the judgment which follows.

In each of the matters referred

to,

counsel for a

particular anthropologist, Mr

R.B. Reyburn, sought to persuade the

Court that, apart from the concepts of public interest immunity

and legal professional privilege, there is

wider power which

courts

and

ribunals

should

exercise

protect

the

confidentiality of field notes and slmilar documents prepared by

anthropologists,

based

the

assurances

confidentiality

normally given by anthropologists to their Aboriginal informants.

It was said that much of the information given was of a secret and

sacred nature, jealously preserved by the

few Aboriginals entltled

to know it and pass it on. Although joined as a respondent in

all

proceedings, Mr Reyburn did not seek to institute any proceedings

of his own.

His counsel was content to use his argument,

second line of defence against disclosure, in supporting the

Authority's case and resisting that	of the Attorney-General for
the Northern Territory.

- 4 -

Public Interest Immunity

In his approach to this toplc, Maurlce

began by

identifying the public interest relied upon

as lying in

"fostering a relationship

between

Aboriginal

informants on the one hand, and the Authority and

its agents on the other, in order to enable the

Authority to effectively perform its functions."

His Honour went on to say,

"There are two main questions to which the claim of

public interest immunity gives rise. Firstly, is

an interest of the kind which the Authority seeks

to protect within one of the recognised classes of

public

interest

which

this

immunity

exists

protect? Secondly, assuming it is, how ought I

exercise the discretion to which a

claim properly

made to such an immunity gives rise: in favour

the protection of sacred sites by the registration

process or in favour of the pursuit of truth in the

conduct of my inquiry?"

It is

alleged by counsel for the Authority that hls

Honour erred in his formulation of the first of these questions by, in effect, placing too much emphasis on the need to fit the present case into an established category or class of public

interest, or to identify a new category or class which could be

said to be analogous to	or extrapolated from a recognized category
or class.

That he did adopt such an approach is clear from his

Honour's ultimate finding on this aspect of the case, after he had carefully canvassed the relevant authorities. He said,

"Whilst I can see that the public has an interest

in the effective performance of the Authority's

functions in this regard, I am qulte unable to see

any parallel between them and one of the categories

of public interest recognised as attracting what

was previously called Crown privilege. In other

words, I cannot see how by analogy and legitimate

extrapolation the limited classes

of information

- 5 -

accorded this status may

be expanded to accommodate

what appears to me to be

altogether novel

situation. In particular, because it was put to me

as the closest analogy,

I should say that I do

not

see even a loose comparlson between the police

providing

confidential

information

gaming

board about an

application for a gambling licence

(Rosers

vSecretarv

of State

(above)

and

Aboriginal persons seeking the protection of the

Authority with respect to their sacred sites."

The recent authorities which Maurice

considered in

detail in arriving at his conclusion were, in the United Kingdom,

Rosers v Secretarv of State for the Home Department C19731 AC 388;

D v National Societv for the Prevention of Cruelty to Children

C19781 AC 171; Science Research Council v Nasse C19801 AC

1028;

and British Steel Corporation v Granada Television Ltd C19813 AC

1096. In Australia they were Sankev

v Whitlam (1978) 142 CLR

and Alister v

R (1983) 50 ALR 41.

A careful

reader

these

judgments

will discern

different degrees of emphasis put upon the importance of being

able to place instances of alleged public interest immunity within

an established category,

to find close analogy with such a

category. The case for categories, if

I may

so describe the

issue, is cogently put by Lord Hailsham in

Q v NSPCC (above, at

p.225) when he contemplates courts

at all levels trying to define

and apply the public interest in unlimited single instances.

However his Lordship went on to refer to his "willingness to

extend

established

principles

analogy

and

legitimate

extrapolation". And he concluded his judgment by saying,

"There are however cases

when confidentiality is

itself a public interest

....

This is one of those

cases .... Whether there be other cases, and what

these may

be,

must fall to be decided in the

future.

The categories of public interest are not

- 6 -

closed, and must alter from time to time whether by

restriction or extention as social conditions and

social legislatlon develop."

In Sankev v Whitlam (above, at p.60) Stephen J (with

whom Aickin J agreed) said, "Relevant aspects of the public

interest are not confined to strict and static classes". After

referring to Lord Hailsham's judgment, his Honour went on to say,

"That case provides

an illustration of the need to

consider the particular nature of the proceedings

in which the claim to Crown privilege arises in

order to determine what are the relevant aspects

public interest which are to be weighed and what is

to be the outcome of that weighing process."

In the same case, Gibbs

A.C.J. said (at p.38),

"The general rule is that the court

will not order

the production of

a document, although relevant and

otherwise admissible, if it would be in~urious to

the public interest to disclose it. However the

public interest has two aspects which may conflict.

These were described by Lord Reid

Conwav

Rimmer C19683 AC 910 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

justice

shall

not

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

the

executive

government,

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

produced

outweighs

the

public

interest

hat

acourt

of justice

performing

its

functions

should

not

denied

access to relevant evidence."

In my view, once it is accepted that the categories of

public interest can be extended as social legislation develops,

(to paraphrase Lord Hailsham, above), it is unwise to dismiss a

- 7 -

claim based on the importance to Australian Aborigines of keeping

certain sacred information closely guarded, merely because that

type of information is unlike state secrets, the names of police

informants or other established categories of immunity. That this

is what Maurlce

did is made clear by the extract from his

judgment last quoted above. However helpful judicial warnings may

be, references in decided cases to the desirability of limiting

recognition of further categories of immunity cannot bind

a Court

which identifies a fresh category, different from those previously

identified, but equally deserving of recognition.

In my opinion, the proper protection of minority rights

is very much

in the public interest,

as is respect for deeply held

spiritual beliefs. In particular, the rights and beliefs of the

Aboriginal people of Australia should be accorded a special degree

of protection and respect in Australian courts. Thus

I can well

imagine a court finding on balance, for example, that the outrage

in an

Aboriginal community caused by a forced disclosure of

information about a sacred site, would outweigh the importance In

that particular criminal or

civil trial of precisely identifying

the place or explaining why it was sacred. Such

an approach would

extend to cover both Aboriginal guardians of the secret and other

persons to whom they had extended their confidence. In this

connexion I see no great significance, in the present case, in the

fact that the Authority is a statutory body. It

is obviously far

removed from the higher exerclse of executive power which may give

immunity to state papers.

To my mind the same principles would

apply if the Aboriginals had chosen to give secret and sacred

information

confidence

the

employees

some

private

- 8 -

foundation, dedicated to the preservation of Aboriginal oral

traditions, such as stories and songs of the dreamtime.

I believe, with respect, that Maurice

J was in error in

so far as he based his decision on this issue on the absence of

analogous category of public interest immunity. It is my opinion

that,

this

country,

a fresh

category

public

interest

immunity

should be

recognized,

covering

secret

and

sacred

Aboriginal information and beliefs. Just who should be entitled

to invoke such

a category need not be decided in the present case.

But, given the basic public interest to be served, and the

valuable task which the Authority is performing,

think it

entitled to whatever protection it may gain from the shield of

public interest immunity.

However, that is not the end of the matter in this

other cases. In the words of Stephen

J quoted above, there is a

need to consider the particular nature of the proceedings in which

the claim arises

"in

order to determine what are the relevant

aspects of public interest which are to be weighed and what is to

be the outcome of that weighing process". In this case, Maurice

went on to consider

how he

would have exercised his discretion had

he found it necessary to

do so.

As his Honour pointed

out, it would be anomalous if

Aboriginals could rely upon the Aborisinal Sacred Sites Act

(NT)

("the Sacred Sites

Act") to provide protection for their sites and

then refuse to allow sufficient revelation to enable persons

legitimately in the area to avoid giving offence.

- 9 -

Similarly, since land claims pursuant to the Land Riqhts

are intimately concerned with the verification of sacred

sites, Aboriginal people must understand that when such claims are

made, they have to be tested by inquiry, and this may involve

recourse to materials prepared in aid of the formal recognition

proclamation of sacred sites pursuant to the Sacred Sites Act. I

do	not doubt that this would be understood and accepted by

Aboriginal people, provided they knew that disclosure going beyond the Authority itself would be kept to the necessary minimum.

In fact Maurice J has proposed to limit access to the

restricted documents to himself, his associate, counsel assisting

him, counsel for the Attorney-General, and possibly a consultant

anthropologist. A limitation of this nature,

with the further

proposed restriction that any information gleaned be strictly

confined in its use to the purposes

the Land Claim hearing,

would go a long way towards reducing the strength of the public

interest argument against disclosure.

On the other hand.

as his Honour pointed out, there are

substantial public interest arguments in favour of disclosure of

materials which may serve to test the validity of claims. Many

people would be affected, to a greater or less extent, by the

granting of the substantial areas claimed - particularly the

residents of Tennant Creek, local miners and graziers and their

families, and commercial enterprises which have invested in the

area. "he likely value to his inquiry of the materials the

- 10 -

subject of debate is very much a matter for his Honour, who

ill

not want to encourage any delay. He concluded that the balance

public interest was in favour

of disclosure.

Although this exercise of the Commissioner's discretion

was criticized by counsel for the Authority, they were not able to

point, in my opinion, to any way in which the exercise has

miscarried. His Honour saw himself

as having a wide discretion.

There

was

important

consideration

mitted

from

his

deliberations, and nothing wrongly taken into account, which could

vitiate the exercise. The weight to be given to the various

factors was a matter for his Honour.

For this reason

I believe that, although his Honour

misdirected himself in finding that he did not need to exercise a

discretion in this case, he has clearly indicated

how he

would

have carried out the weighing process referred to by Stephen

(above) had he thought it necessary, and

it would be pointless to

require him to do

so again. Thus the challenge to his decision

based on public interest immunity should fail.

Confidentialitv of Communications to Anthropoloqists

Another question which this Court is called upon to deal

with is the issue raised by counsel for

Mr Reyburn, who put

"backstop" argument to those which were based in these actions on

public interest immunity

and, in the related actions, on legal

professional privilege. In the event, I find it only necessary to

deal with this argument to the extent that it suggests that

documents which have failed to achieve protection under the

- 11 -

heading of public interest immunity should nevertheless be treated

as privileged on general grounds of confidentiality.

The argument is based on authorities such as Science

Research

Council v Nasse

(above),

where

pp.1065-66

Lord

Wilberforce conveniently summarized the law concerning respect for

the confidentiality of documents which are not protected by public

interest immunity or legal professional privilege. The two cases

then before the House of Lords concerned the confidentiality of

personal records of third parties in cases where discrimination in

promotion or appointment was claimed by

an employee.

After finding

in the first paragraph

of his summary that

public interest immunity did not apply, his Lordship continued

follows

“2.	There is no principle in English law by which

documents are protected from discovery by reason of

confidentiality alone. But there is no reason why,

the

xercise

its

discretion

rder

discovery, the tribunal should not have regard to

the fact that documents are confidential, and that

to order disclosure would involve	a	breach	of
confidence ....

3 .

a corollery to the above, it should be

added that relevance alone, though

necessary

ingredient,

does

not

provlde

utomatic

sufficient

test

for

ordering

discovery.

The

tribunal always has a discretion.

. ..

4 .

The

ultimate

test

discrimination

(as in

other)

proceedings

iwhether

discovery

necessary for disposing fairly

of the proceedings.

is,

then

discovery

must

ordered

notwithstanding

confidentialty.

But

where

the

court

impressed

with

the

need

preserve

confidentiality

particular

case,

will

consider

carefully

whether

the

necessary

information has been or can be obtained by

other

means, not involving a breach of confidence.

5. In

order

reach

conclusion

whether

discovery

necessary

notwithstanding

- 12 -

confidentiality the tribunal should inspect the

documents. It will naturally consider whether

justice can be done by special measures such as

"covering up",

substitutlng anonymous references

for speclfic names, or,	In rare cases, hearing in
camera.

6. The procedure by which this process is to be

carried out 1 s one for tribunals to work out in a

manner

which will avoid

delay

and

unnecessary

applications.

. .

In my

view this statement of principles, which was

supported either expressly or

implicitly by the other members of

the House of Lords, is of assistance as a starting point in the

present

case.

I would

only

add

that

the

grounds

for

confidentiality seem to me to be stronger in the present case

there is more at stake. On the other hand it should be noted that

some of those who might have been thought most anxious to have the

confidentiality of their information protected are also those who

initiated the Land Claim and who stand to gain by it. They,

through the Central Land Council, have informed the Court that

they are not arguing for confidentiality in these two actions

because they regard a speedy conclusion of their Land Claim

hearing as more important.

All these considerations were,

I believe, taken Into

account by Maurlce

in the course of his long and careful

~udgment. The balancing exercise which he embarked upon, at the

end of his consideration of public interest immunity, amounted to

an exercise of his discretion in the difficult task

doing

justice

between

the

parties

while

giving

proper

weight

considerations of confidentiality.

- 13 -

His Honour carefully considered the Judgments in Science

Research Council v Nasse (above).

He found that the case was not

directly in point because it dealt essentially

with

discovery,

whlle he was looking a step further ahead to the giving of

effective

evidence,

which

would

the

subject

informed

cross-examination,

lengthy

and

complex

inquiry.

the

event, I am satisfied that there is

nothmg which his Honour

contemplates which is inconsistent with the principles stated by

Lord Wilberforce. Confidential material will be treated with

respect and,

in each case, its usage will be limited to the

requlrements of justice in the conduct of the Commlssioner's

hearings.

On a point of detail, I agree with the Chief Judge, for

the reasons which he gives, that the affidavit of Wenten Rubentja

should be admitted in evidence.

In the event, the application for

renew

should

dismissed and the order nisi for a writ of mandamus discharged. argument. As at present advised, I would make no order as to

costs; but, in view of the request

I have referred to, I would

reserve liberty to any party to apply to the Court on the subject

of costs within 21 days. If any such application should be made,

it would probably be convenient that it be dealt with on the basis

of written submissions.

- 14 -

I hereby certify that the

thirteen (13) preceding pages are a

true and accurate

copy of the

Reasons for Judgment herein of

The Hon Mr Justice Woodward

Associate

Dated: 27 March 1986

, .

- _

IN THE FFDERAL COURT

CIF

AUSTRALIA

No. V G237 of 1985

B E T W E E N :

THE ABORIGINAL SACRED	SIT=
PROTECTION AUTHORITY

Applicant

and

THE HONOURABLE MR. JUSTICE MAURICE

ABORIGINAL LAND COMMISSIONER

Respondent

IN THE FEDERAL COURT

)

OF AUSTRALIA

NEW SOUTH W E S

)	No. G336 of 1985

DISTRICT REGISTRY

)

GENERAL DIVISION

)

IN THE MATTER of an Application

for Writs of Prohibition and

Certlorari against

THE HONOURABLE

MISTER JUSTICE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL AND COMMISSIONER

Respondent

AND IN THE MA=	OF THE WARUMUNGU
LAND CLAIM

M PARTE ABORIGINAL SACRED SITES

PROTECTION AUTHORITY

Prosecutor

C m : Bowen C.J.. Woodward and Toohey JJ.

27 March 1986

REASONS FOR JUDGMENT

2 .

TOOHEY J.

The Court has before

a number of questlons arisina

from the hearlnq of

the Warumungu Land Claim under

the provisions

of the &boriuinal Land Rlqhts (NorLhern Terrltory)

Act 1976 ("the

Lands Rlghts Act") by the Aborlglnal Land Commissloner, Maurice

The questlons concern notices issued by the Commissioner

pursuant to

s.54

of the Land Rights Act, calling upon various

persons to produce materlal in their possession said to relate to

the land claim. Those notices were issued at the instance of the

Attorney-General for the Northern Territory of Australia who was

party to the land

clam,

representing the government of the

Northern

Territory.

particular

notices

were

addressed

several anthropologists and linguists requiring the production of

material prepared by them largely

a result of information

provided by Aboriginal informants. Objection

was taken to the

production of much of the materlal the subject of the notices,

the

grounds

of privilege and confidentiality. The Court is not concerned with

public

interest

immunity,

legal

professional

the

question

legal

professional

privilege

these

applications. That matter arises in two other applications heard

immediately after these applications had concluded.

The Aboriginal Sacred Sites Protection Authority Authority"), a body constituted by the Aboriginal Sacred Sites Act

("the

of the Northern Territory

("the Sacred Sites Act"), was granted

leave to argue agalnst the production to the Commissioner

of such

material the subject of the notices as had come into existence in

3 .

the course of work done

by persons for the Authority, elther as

employee or pursuant to some contractual arrangement.

Before the Cornmissloner affidavlts were tendered on

behalf of the reclplents of the notlces, wltnesses were examlned

and cross-examlned and extensive argument was adduced both for and

against the production of the material. Evidence and submissions

extended over the period 16-25 July 1985. On 1 October 1985 the

Commlssioner announced his decision in respect of the issues

before him and delivered lengthy reasons in support of the rulings

he made. He rejected a submission attached to the operations of the Authorlty.

that public interest immunity

He held that even if

public interest

interest tilts in favour of disclosure". His rulings have been

challenged before this Court.

immunity

did

attach,

"the

balance

public

In so far as the material required

to be produced

emanated from work done at the instigation of the Authority, the production under a head of public interest immunity. It also attacked the Commissioner's approach to balancing aspects of

public interest.

Mr. Reyburn, one of those

who

received a 5.54

notice and who described hlmself as a cross-cultural consultant,

appeared by counsel to support the Authority's claim

for public

interest immunity but contended as well that the Commissioner had

erred in failing to balance correctly the various considerations

argued in support of and in opposition to the production of the

documents prepared by him. The Attorney-General resisted the

arguments of the Authority and of Mr. Reyburn. The Central Land

Councll, a body establ~shed

by the Land Riuhts Act, appeared to

represent

the

Interests

of Aborluinal

claimants

before

the

Commissloner.

There are two

applications with which these reasons for

Tudqment

are

concerned.

One

under

the

provlsions

of the

Administrative Decisions (Judicial Review) Act 1977 and the other

made

pursuant

s.39B

the

Judiciarv

Act

1903. The

Authority

the

applicant

each

case

and

truth

the

Attorney-General is the respondent though other parties have been

In Attornev-General (N.T.) v.

light

the

experience

r flected

joined.

the

Kearnev (1984) 55 A.L.R. 545, the

Authorlty

has,

by way of caution, proceeded under both the

Judicial Review Act and the Judiciary Act.

Counsel for the Authority took

their starting point

the question whether the notion of public interest immunity

extended to the operations of the Authorlty itself, in particular

to material obtained by the Authority from Aboriginal informants

in order to consider whether a site should be registered or

declared. Although the matter was argued very much by reference

to information imparted to anthropologists employed by

or engaged

by the Authority, the question arises, however information is

imparted to or gathered by the Authority.

While the existence or non-existence of public interest immunity lies at the heart of the issues concerning the Authority,

I do

not think

it is

the startlna point for

an inqulry by the

Court.

The startlng point must be the functions and powers of the

5 .

Aborlglnal Land Cornmissloner

for lt may be that in those functlons

and powers lles a clue as to whether the notion

f public interest

immunity has any application to an inqulry under the Land Rights

Act.

Section 50 of

the

Land

Riahts

Act

confers

the

Commlssloner a number of functions. His primary function (and

that with which

the

Court

1 s

presently

concerned)

is,

application belna made by

or on behalf of Aboriuinals claiming to

have

traditional

land

claim to an

area of

land

(being

unalienated Crown land

alienated Crown land in which all

estates and interests not held by the Crown are held by,

or on

behalf of,

Aboriginals) to ascertain whether those or

any other

Aborlginals are the traditional Aboriginal owners of the land. He

must report his findings to the Minister for Aboriginal Affairs

and the Administrator of the Northern Terrltory and, where he

finds that there are traditional Aboriginal owners, he may make

recommendations to the Minister for the granting of the land or

any part of

it in accordance with the Act.

The powers of the Commissioner are cast

the widest

terms; s.51 provides that he "may do all things necessary

convenient to be done for

or In connexlon with the performance of

his functions". Clearly the Commissioner may not act in

arbitrary manner and, generally speaking, he must act according to

the principles of natural justice as they exist	in regard to
administrative inqulries.

The

Commlsslaner S

f unct lens

ar e

essentlally

lnaulsltorlal f o r he 1 s requlred bp the

Act to lnqulre and report.

However, In conductlna an inqulrp

the

Commlssioner may flnd

approprlate from tune to time to adopt adversarlal procedures,

partlcularly

where

1 s

apparent

that

urant

land

tradltlonal

owners

may

affect

mterests of

ad3oinlnu

landholders or townspeople. the exlstlnu

or llkely future plans

uovernment or public utllitles or the interests of miners. Thls is not to say that an adversarlal approach is always appropriate

or 1 s the norm. While. in the ordinary run. materlal uathered by

the Commlssloner

m the course of

hls inqulry wlll be presented

throuuh interested partles, there may be occaslons when the own inltlative. Paragraph 50(l)(a) of the Land Riuhts Act obliges

the Commissloner to ascertaln whether the Aboriqinal claimants

any other Aborlqinals are the traditional Aboriginal owners of the

land claimed. In elther case questions will arise as to the

extent to which material should be made available to all those

particlpating in the inqulry. As

a ueneral rule the dictates of

natural justice require that material be made available to all

participating. But there may be situations, in particular where

evldence

concerns

matters

secret

sacred

nature

Aboriulnals, In which the Commissloner is justified in placing constralnts upon the clrculatlon of that evidence.

These are matters for the judurnent

of the Commissloner.

That

not

to say

that

hls

exerclse

Judgment

not

susceptlble of revLeW. whether under the Judicial Review

Act or bp

means of

s.39B of the Jmclarv Act. But It is to polnt

up the

broad discretion whlch the Land Rlqhts Act confers upon the

Commissioner in the course of an inqulry. However

was not

suggested by any counsel that publlc interest immunlty has no

place under the Land Rights Act and we were told that the aruument

proceeded before the Commissioner on the basls that the doctrine

was applicable to hls inquirv.

Whlle the principal attack

the Commlssioner was made by the Authority, one should not lose

sight of the fact that the notices were not issued to the

the issue of notices by

Authority

ind vidual

to anthropologists. Section

but

persons,

particular

54 of the Land Rights Act empowers the

Commissioner, by notice in writing, to require a person "whom he believes to be capable of giving information relating to a matter being inquired into by the Commissioner in carrying out his

functions under this

Act, being a matter specified in the notice,

to attend before him ... and to produce to the Commissioner such

documents and other records in relation to that matter as are

specified in the notice".

It is the

Commissioner's

belief

that

the

justification for the issue of a notice. It was not part of the the Commissioner was not justified in believing that the persons

the

subject of the

notices

were

capable

giving

relevant

information. Nevertheless counsel for the Authority

did submit

that the Commissioner issued the notices on the mere assertion of

counsel for the Attorney-General that the recipients of the

notices had information which might prove relevant. Havlng regard

a .

to the way

submlsslons of counsel. the Court is not called upon to determlne

whether the Commlssloner had Justiflcation for the issue of the

notices. But. If the notlon of public interest immunity exists in

the case of the operatlons of the Authority, the Commissioner is

still requlred to welgh the public interest against disclosure

agalnst the public interest in favour of production. This is a

balancing exercise which the Commissioner must conduct. It may be

that once particular documents are produced, the Commissioner will

I n

whlch

the

appllcatlons

are

framed

and

the

decide that they are not capable	of	assisting the inquiry and
reject them on that ground.

The Sacred Sites Act has been described as complementary

or reciprocal legislation. It was enacted pursuant to

sub-s.73(1)

of the Land Rlghts Act whlch extended the power of the Legislative

Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 in relation	to the making of laws to
the making of

“(a) laws providing for the protection

of,

and the

prevention of the desecration

of,

sacred sites in

the Northern Territory

...l’.

The Authority is a body corporate, consisting of a

chairman and eleven other members, all

of whom except the Director

are appointed by the Administrator of the Northern Territory. The

functions of the Authority are spelt out in	5.13 of the Act and it
is worth setting them out in full:

"13. The functions of the Authorlty are -

(a)

to establlsh and maintaln a register of sacred sites;

(b)

to examine and evaluate all claims for sacred sites made to it by Aborlainals;

(c)

to record sacred sites, with full details of the

significance

tohe

traditlonal

Aboriginals,

includinq any story, of each sacred site and any

relevant factors

mcludinq custodianship of the

sacred site;

(d) to recommend to the Administrator

that particular

sacred sites be declared protected sites under this

Act;

(e) to enforce the provisions of this Act; and

(f)

to carry out such other functions relating to the protection of sacred sites as the Administrator

may, by

notice

the

Gazette,

authorise

the

Authority to carry out."

Part 111

of the Act is concerned with

the Register of

Aboriginal Sacred Sites in which the Authority is obliged to

"record all sites which the Authority accepts as sacred sites".

The term "sacred slte" is defined by

s.3 to mean

"a site that is sacred

to Aboriginals or is otherwise

significance according to Aboriginal tradition, and

includes any land that, under this Act, is declared to

be sacred to Aboriginals or	of significance according
to Aboriginal tradition".

Thus the legal status of sacred site is not dependent upon action by the Authority; indeed the offence created by 5.31

of entering or remaining on a

sacred site does not requlre that

the

site

registered

even

under

consideration

the

Authority.

The Authority is required by

s.25

to examine and

evaluate a slte referred to

It by an Aborlginal as a sacred slte.

satisfled,

the

Authorlty

records

the

site

and

all

its

10.

partlculars

the reulster. Sub-section

2 4 ( 2 ) requires that the

record of a sacred slte made in the register shall,

"in so far as

it is possible", state the boundarles of the sacred site

area, the

name or names of the custodian or custodians wlth addresses, the story of the slte according to Aboriglnal tradition and any other

matters concerning the site

as the Authority thinks relevant.

However, access to the register is at the discretion of the

Authorlty (sub-s.24(4)).

In practice, as appears from the affidavit

of Robert

William Ellis. the Director

the Authority, access to the

register is strictly limited. The register, In which are kept all records of sacred sites and any relevant material, is housed in a

locked room wlth

keys

available

only

the

Director,

the

Registrar of

Sacred Sites and the Senior Technical Officer.

anthropologist employed by the Authority may be permitted access

to the register during working hours to check notes but always

under the supervision

the Registrar. No-one may copy any

material in the register other than the Registrar himself.

In Mr.

Ellis' words "The material in the Register is regarded

as highly

confidential".

The reason for confidentiality is summarised in

the followlnq paragraph

of Mr. Ellis' affidavit:

The Authority has, since its inception and in

the day to day operation of its work, assured and

guaranteed custodians of sacred sites and Aboriginal

traditional owners strict confidentlality in respect of

11.

all materials lodged In the Register and given

a verbal

undertaking that any request by any person to view or

obtain a copy of the materlal will be subject to the

terms of any agreement which may be glven by the

custodians. The Authority will not release any

lnformation whatsoever from the Reglster without first

consulting the appropriate custodian and obtaining his

or her express approval. There is an exception to this

11.

practice.

namely, the Authority

wlll

provide

maps

showma the

boundaries

of areas

accepted

the

Authorlty as sacred sltes where a person has a bona flde Interest In the area In question".

As to this last statement, the Authorlty's report for

the year ended

30 June 1982 contains the following comment:

The

Authority's

has

been

regularly

consulted by mineral explorers and other developers and

is proving a useful aid in the orderly development of

the Territory's economy. It is anticipated

that

people become more aware of the Authority's ability to assist in this matter, that greater use will be made of the register by developers and planners in the Northern

Territory".

It is,

I think, helpful to include another paragraph

from Mr. Ellis' affidavit:

12. If the Authority were to disclose material

from the Register without the prior express approval of

the custodians, the Authority anticipates that the

confidence

custodians

and

Aboriginal

persons

generally wlll be severely eroded to the point that it

compromises

its

function.

Also, the

Authority

anticipates that bodies upon whose good offices the

Authorlty relies would withdraw much

the ready

support it has enjoyed since the Authority started.

The

esteem

with

which

the

Authority

held

professional researchers would be greatly impaired.

The fundamental principle upon which the work

of the

Authority

predicated

that

can

and

will

guarantee confidentiality of all information provided

to it. If it becomes known to Aboriginal people that

material obtained by the Authority in the discharge of

its functions had by whatever means been provided to

another person otherwise than in accordance with the

principles and procedures outlined above, trust in the

Authority would be undermined;

it would be much less

able to discharge its statutory functions and would run

the substantial

risk

losing

the

support

custodians and Aboriginal people. Aboriginal members

of the Authorlty have expressed to me the fear that if

the Authority were to act In a manner not in accordance

with

the

above

princlples

and

procedures,

they

personally would face traditional sanctions associated

12 .

with

the

improper

dlstrlbutlon

restricted

Information".

In para.

of his affidavit, Mr.

Ellis stated the

willingness of: the

Authorlty

receive

request

from

the

Commissloner

obtain

coples

reports

prepared

for

the

Authority in the area of the Warumunuu Land Claim. In his words:

"Upon receipt of such a request the Authority would

undertake to consult with custodlans and authors as to

that material which mluht, in the discretion

the

Authority, be properly released. The terms of any such

release

could

then

worked

out

as between

the

Cornmissloner and the Authority acting	on the advice of
the custodians".

The Central Land Council, representing the Aboriginal

claimants before the Commissioner, took

a different approach to

that of the Authority. The Council wished to maincain the right

of the Authority to preserve confidentiality in the material it

received. Nevertheless, in the circumstances now existing, the

Council did not seek to maintain

a principle

of public interest

immunity attaching to the Authority. The Council invited the

Court to dispose of the applications before

without reaching

any conclusion as to the application of public interest immunity

in reuard to the Authority.

The Court should, the argument ran,

dispose

the applications on the basis that even if such

immunlty existed, the Commlssioner had correctly exercised his

discretion in requiring the recipients of

5 .54 notices to produce

the

documents

pecified

those

notices

and

imposing

limitations on the distributlon of those documents.

13.

The basls of

the Cour~crl's approach was

that alreadv

much tune

had been lost and expense incurred In connection with

the Warumunuu Land

Clam.

It was of the ureatest lmportance to

the Aborlqlnal claimants that the hearing

thelr claim be

resumed and disposed of

as soon as possible. Already there have

been grants of mining rights

in respect of the

claim

area and

other governmental activities in relation to the land which, the

Council submitted, constitute a continuing disadvantage in the

event that a recommendation is made for a grant of land to them.

In the

Council's

ubmission,

there

was

need

in the

circumstances

the

present

case

withhold

any

of the

documents, the subject of the notices, from production. It had

not been shown that production of any of the documents was likely

to bring about adverse consequences

for Aboriginals or that the

production of	such documents would impair the operations of the
Authority.

The Council was at pains to stress that the claimants

had taken a pragmatic view

of the situation and had concluded

that, in the circumstances, it was preferable that the documents be produced without any further delay so that the hearing might

resume.

The claimants were content with the restrictions attached

by the Commissioner to the distribution

the documents the

subyect of the notices

and, in all the circumstances, accepted any

risks associated with the production

of that material including

its effect on the Authority, rather than delay the hearing

of the

land claim any further. The concept

of traditional owners under

the

Lands

Rights

Act

does

not

necessarily

equate

that

custodians under the Sacred Sites Act. While that may have some

practlcal lmpllcations.	I do not thmk It affects the issues
before us.

The Councll stressed that, while the jurisdiction of

thls Court under the Judicial

Renew Act was not challenaed,

should

recognized

that

the

decisions

the

subject

the

application were decisions of a procedural nature made durlng the

course of the Commlssioner’s hearing. They were In the nature of

interlocutory decisions, not final decisions. It followed that,

any event, the Court should be

slow

to interfere with the

progress of

the land claim, particularly as the Commissioner had

before him a considerable amount of oral and written evidence

which placed him in a particularly advantageous position to assess

the relevance and impact of the material sought to be produced and

the

approprlateness of restrictions

to be attached

its

distribution.

The

Court,

it was

said,

lacked

many

the

advantages available to the Commissioner.

As a starting point for a consideration

of the relevant

judicial decisions, it may be accepted that it is in the interests

of the Authority that it

be able to preserve confidentiality in

respect

information

furnished

directly

or indirectly

Aboriginal informants, particularly information of a secret sacred

nature.

That

much

emerges

with

sufficient

clarity

from

the

affidavit of Mr. Ellis. Material is entrusted to the Authority in

the confidence that it will not be made available to others

without reference to the informant. That is not to say that all

mformation

provlded to the Authority possesses characterlstics

requiring confidentiality. But, in order not to undermine the

There

appears to be,

underlying

the

Commissioner's

approach to the question of public

mterest mmunlty, the notlon

that the Authority and Aboriulnal lnformants In some wag seek to

place themselves beyond the reach of judicial or quasi judicial

process. Referrlnu to the Sacred Sites Act, his Honour said:

"If iboriulnal

people

want

the

protectlon

this

legislatlon - dnd I do appreciate that this may involve them in a difficult cholce - then they must be prepared to come forward and reveal sufficient about thelr sites

to brinu themselves within its umbrella. And, in my

opinlon. ulven the extent of protection afforded by the

Act to such sltes, it is not tenable that Aboriginal

people may

do thls for the purpose of enablinu the

Authorlty to do what, In effect, may amount to holdinu

in terrorem persons who have a

legitimate interest in

the area claimed to be a site, without being prepared

to extend the range of disclosure beyond the members

and staff of

the Authorlty in appropriate situations".

With respect,

I do not think this is the way in which

the Sacred Sites Act

or the workina of the Authority should be

approached. The Act. as its name indicates, is for the protection

of sacred sites. The

Act imposes an obliaation on the Authority,

in the circumstances mentioned. to reuister a sacred slte.

empowers but does not obllue the Authority to take steps to have

sacred site so declared by the Bdminlstrator. The declaration of a sacred slte is necessarily attendant with publicity. for the Bdminlstrator must cause an lnvestiuation to be carrled out ( 5 . 2 6 ) and the notlce in the Gazette. declarlnu an area to be a sacred

slte. must include

a map indicating an area that contalns the

sacred alte OK lrldlcate w h r ~ e suih d map

ntay be lrlsuectccl < 5 . 2 7 1 .

Where a sacred s ~ t e IS so declared. s .L8 vruvldes vdrlous steps that may be Laken for- the proLectlon OF that s~te. It appears that durmu Its existerice ttlr AuthorlLv has no t souuht to have any

sacred slte

declared. the 1ea5on belna that the publiclty

rircessarlly

attendant

such

a step

has

made

Aborlulnals

reluctant to lnitiate requests

to the Authority to do

so.

Where a

sacred site is reuistered but not declared, no

consequences follow automatically. By reason of s.34 of the Act,

a certificate under the common seal of the Authority or the hand

of its director certlfying that n area of land is recorded In the

reuister as a sacred slte “shall be accepted as proof that it is recorded as a sacred site by the Authority. by all courts. judaes

and

persons

actinu

judicially

wlthout

further

proof

beinu

requlred”. Presumably the section means what it says viz. that a

’

certificate is proof of recordina. It is not proof that there is

a sacred slte wlthin the definition of that term in

5.3 for, in

the absence of a declaration, it must be shown that a site is “sacred to Ilboriuinals or is otherwise of significance according to Aboriuinal tradition”.

What then is the poir?t

of recordinq a

site in

the

In part it

1 s because recordinu reflects an evaluation by the Authorlty. and

the materlal reflected in the evaluation is avallable as evidence

if the Authority wlshes to control access to

sacred site or

decides to prosecute

for an offence. In part

lt lies in s.31(7)

of the Act.

Sectlon 31

makes lt an offence to enter or remaln on

a sacred slte.

Sub-sectlon ( 0 1

makes It d defence "lf the person

charued proves

that he had

no reasonable grounds t o r suspectlna

that the sub-s.\ir, such

land

concerned

was d sacred

slte".

By reason of

defence

cannot

establlshed

unless

the

defendant proves inter

a l m that:

"(b) he had taken all reasonable steps to ascertaln the

location and extent

of the sacred sites on any part

of	that Aboriginal land llkely to	be visited by
him"	.

obvious step

to take would be to enquire of

the Registrar

whether In the land proposed to be visited a sacred slte existed.

Thus the operations

of the Authority may have little

direct impact on

the ueneral populatlon of the Northern Territory

where no declaratlon has been made. The Act itself seeks to

protect sacred sites and. lncidentally thereto, the Authority

becomes a reposltory of a ureat deal of material. To accord

public interest immunity to the Authority is not to place it

beyond the

law.

It is to ensure that, before documents in its

possession are produced to a court

or tribunal, the court

tribunal considers whether the public interest to be served in

protecting the document from disclosure is outweighed by the

broader public interest In ensurina that all relevant lnformation

1 s made available to it. However the question whether

the concept

of public interest lmmunity attaches to the operations of the Authority remalns to be decided. And whlle there

much good

sense In the approach taken by the Central Land Council,

I do not

think that Authority's principal submission.

the

Court

can

avold

comma to

urips

with

the

LB.

It 1s apparent

that confidentiality alone 1s

insufficient to establish public interest lmmunity. McGuinness v.

Attorney-General (1940) 63 C.L.R. 73 at pp.102-103; p v. National

Societv for Prevention of Cruelty to Chlldren C19781 A.C. 171 at

pp.230, 237-239; Science Research Council

v. Nasse C19803 A.C.

1028 at pp.1065,

1074, 1080.

In McGuinness at p.102 Dixon

stated the position as to privilege in these terms:

"Except

a few relations

where

paramount

considerations

of general policy appeared to require

that there should be a special privilege, such as

husband and wife, attorney and client, communications

between jurors, the counsels

the Crown and State

secrets,

and, by statute, physician and patient and

priest and penitent,

an inflexible rule was established

that

obllgation

honour,

duties

non-disclosure arising from the nature of a pursuit or

calling, could stand in the way

the imperative

necessity of revealing the truth in the witness box".

McGuinness dealt with the question whether privilege

attached to the editor

of a newspaper who declined to answer

questlons at a Royal Commission regarding the source of statements in his newspaper touching the subject matter of the inquiry. In the light of later decisions, it is doubtful that the rule can be

stated in such absolute terms, unless within the exceptions noted

by Dixon

J. may be included certain information coming into the

possession of sta'&tory

bodies

not

accurately

described

government departments

or organs of central government. In this

regard the principal authority is

D. v. N.S.P.C.C.

That

case

concerned

the

National

Society

for

the

Preventlon of Cruelty to Children and lnformation received by the

19.

Soclety about the treatment of

a fourteen month old girl. The

mformatlon resulted in a visit by

an inspector of the Soclety to

the home

of the parents of the child.

The mother

of the child

later brousht actlon against the Soclety for damaaes for personal

injurles alleued to have resulted

from the Society's neslluence in

falling properly to mvestiuate the complaint and the manner and

circumstances of the inspector's call which, she said, had caused

her severe and continuing shock. The Society defended the action

and applied for

an order that there should be no discovery

inspection of any documents which revealed

or might reveal the

identity of the Informant.

The basis of the application was that

the proper performance by the Society of its duties under its

charter and

confidentiality of information given in confidence should be

preserved, that if disclosure were ordered the Society's sources

the

relevant

statute

required

that

absolute

of information would dry up and that that would

be contrary to the

public interest. The Soclety also claimed that disclosure of the

informant's identity was not necessary for disposing fairly of the

action.

Master Jacob ordered that the relevant documents be

disclosed. On appeal by the Society, Croom-Johnson

J. reversed

the Master's order. On appeal by the mother, the Court of Appeal

restored the order.

On further appeal by the Society, the House

of Lords unanimously allowed the appeal though the reasoning that

led each of their Lordshlps to that conclusion was not identical.

Lord Diplock took what was described In argument as the "narrow" approach, saying at p.219:

2 0 .

"I	would extend to those who uive lnformation about

neglect or ill-treatment of chlldren to a

local

authorlty or the N.S.P.C.C. a slmilar immunity

from

disclosure

of their Identity

in legal proceedlnqs to

that which the

law accords to police xiformers".

He thouqht it unwlse to base	a declsion on the "broad" approach
viz. that

"wherever a party to legal proceedings claims that there

is a public interest to be served by withholding

documents or information

from

dislosure

those

proceedings, It is the duty of the court to weigh that

interest against the countervailing public interest in

the administration of justice in the particular case

and to refuse disclosure if the balance tilts that

way	' I	.
Lord Hailsham was against "a general extension in range

the

nature

the

exceptions

the

rule

favour

disclosure" (at p.224) but he found "equally unattractive the more

restricted

and

even,

occasionally,

pedantic

view

the

authorities advanced on behalf of the respondent". (at p.226).

expressed

willingness to extend established principles by

analogy

and

legitimate

extrapolation

flexible

than

was

admitted by the respondent"

(at p.226). In his Lordship's view,

an extension of the protection given to informants to the police exception.

to information relating to possible child abuse supplied to the

Lord Simon spoke

"a continuum of relevant evidence

which may be excluded from forensic scrutiny" (at p.233). He too

thought that "a narrow rather than a wide ground of decision would

be deslrable I n the instant case, if the former 1 s available" (at

p.235).

He was prepared to extend, by analouy, the protectlon

qiven to informants to the police.

Lord Kilbrandon agreed with Lord Hailsham, saylng that

he would allow the appeal	"on what has been termed the narrow
ground" (at p.242).

Lord Edmund-Davies enunciated the principle in rather

wider terms. He said at p.245:

"(11) But where (i) a

confidential relationship exists

(other

than

that

lawyer

and

client)

(ii) disclosure would be in breach of some ethical

or social value involving the public interest, the

court has a discretion to uphold

a refusal to

disclose relevant evidence provided it considers

that, on balance, the public interest would be

better served by excluding such evidence.

(111) In conducting the necessary balancing operation

between competing aspects of public interest, the

presence (or absence)

involvement

the

central government in

the matter of disclosure &

conclusive either way, though in practice it

may affect the cogency of the argument against

disclosure.

He thought that the view of Croom-Johnson

that the public

interest

protecting

the

Society's

sources

information

overrode the public interest that the mother should obtain the

information she was seeking in order to obtain legal redress had

not been shown to be in error.

The ratlo decldendi of

D_. v. N.S.P.C.C. may, I think, be

expressed this way. There is no legal princlple that protects

documents from production

information from disclosure merely

because thev are uiven In confldence.

The sc--ateuorles ulvlnu

rise

to lmmunitp are not closed but they

map onlv be extended by

analouv

and

leffltlrnate

extrapolation.

hforrnatlon

about

child

abuse. provided

to oraanlzatlons concerned wlth protectlon of

children. t a l l s wlthln the concept of public interest lmmunity as

a leuLtlmate extension ot the imraunity already ulven to informants

to the police. See also Eog~s .

v. Home Secretam C19733 B.C. 388.

the sltuatlon. the result would be that the only publlc interest

"narrow" approach be applled to the present

immunty attachinu to the Buthorlty is in the case

of information

provlded to enable it to prosecute for an offence under the Act.

That would not assist the Authority

In the present case.

Even though In D_. v. N.S.P.C.C. most

of their Lordships

preferred the narrow approach.

a wider view was taken by the High

Court in Sankey v. Whltlax (1978) 142 C.L.R. 1.

The case related

to privileue

from production of cabinet documents and papers

concerned wlth policy decisions at

a hluh level. Thus it was

concerned wlth

Crown privlleue in the traditional sense

of that

term. Nevertheless views were expressed by the members of the

Hiuh Court that have appllcatlon to

a wider ranue of documents

than those

wlth which the decislon was directly concerned.

Gibbs

A.C.J.

dealt with the matter under the heading

"Evidence Excluded as Pre3udicial to the Public Interest ('Crown

Prlvileae')".

began his discussion of the relevant principles

at; p . 3 8 with this propositlon:

His Honour then emphasised that

it is the dutv of the

court

t o declde whether a document will be produced

may be

withheld. an

exerclse that requlres the court t o determlne whlch

aspect of the public interest predominates - "whether the public interest whlch requlres that the document should not be produced

outweighs

the

publlc

interest

that a

court

Justice

performlnq its

functions should not be denled access to relevant

evldence" tat pp. 38-39).

Gibbs A.C.J.

continued at p . 3 9 :

"An

oblectlon may be made to the production of

document

because It would

agalnst

the

public

interest

disclose

its

contents,

or because

belonus to

a class

of documents which in the public

interest ought not to be produced, whether

not it

would be harmful

dlsclose the contents of the

particular document".

As to the latter,

he said:

"Speaking generally, such

a claim will be upheld only if

it is really necessary for the proper functioninq

the public servlce to wlthhold documents	of that class
from production".

His Honour went on to conslder documents that had been

held

k o fall

within that class.

For

the most part they are

cablnet

mlnutes,

minutes

discusslons

between

heads

department and documents whlch relate to the framlng of government

2 4 .

pol~cy

at d

hlnh level. hhlle rrcoqnlzmcr that thete

1 s a class

of documents entltled to protectlon

from disclosure lrrespectlve

of thelr contents. Glbbs

A . C . J .

descrlbed this protection as

"not absolute. and

lt does

nol;

endure forever.

The

fundamental and governmu principle 1s that documents in the class may be wrthheld from production only when this 1 s necessary 111 the public interest. In a partlcular case the court must balance the ueneral

desirabrllty that documents of that kind should not be

disclosed aualnst the need to produce them in the

interests of

lustice" (at p . 4 3 i .

As I read his Honour's analysis.

a document may be

entitled to protectlon from production because it

falls

into a

particular class but the court may find it necessary to decide whether, in all the circumstances, the protection should endure.

Where

a document does not fall within one of these recoanized

classes, the court may nevertheless decide that both aspects	of
public interest exist and which predominates.

Stephen J.

referred to competinu interests in this way

at pp.48-49:

"Because disclosure to the world

at larue

some

information concerning sensitive areas

of qovernment

and administration may prejudice the national interest

there exists

a publlc interest in preventing the curial

process from beinu made the means of

any

such

disclosure. At the same time

the proper administration

justlce.

prime

importance

the

national

Interest, requires that evidence necessary if justice

is to be done should be freely available to those who

litiuate in our courts".

While

Stephen

made

reference

the

fact

that

documents relatinu to a hiuh level

of uovernment declsion-making

2 5 .

have been spoken

of "as pre-eminently one for the application of

the privileue"

(at

p . 5 7 ) .

I understand his Honour to put the

balancinq process at the forefront, as

lt were, of the question

protectlon from production. His Honour went on to say "Relevant

aspects of the public interest are not confined to strict and

static classes'' (at

p.60). In that context he referred to

D_. v.

N.S.P.C.C., noting that

"their Lordships discerned an aspect of the public

interest,

hitherto

unremarked

and

which

was

quite

unconnected with the affairs of central government but

which was nevertheless proper to weigh in the balance

and which in the outcome sufficed

to outweigh that

other public interest which exists in there being

available to the court the information necessary for	it
to do Justice between litigants".

His Honour said that those "who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy

burden" (at

p.62).

Mason J.

said that while it has generally been assumed

that important state documents relating	to	high level policy
decisions are immune from production:

"It is now recognized that in

consldering an objection

to production on the ground of Crown privilege

the

court must evaluate the respective public interests and

determine whether on

balance the public interest which

calls for non-disclosure outweighs the public interest

in the administration of justice

that requires that the

parties be uiven a fair trial on all the relevant and

material evidence" (at pp.95-96).

His Honour went on to say expressly at

p.96:

I ,

~~abinr l ; ieclslon

and

cablnet

papers do not: stand

cuksrde

the cteneral rule thcrt rraulres the court to

dece r r s lne whether on

balance the publlc interest calls

f o r production or noli-production. They stand f a l r lv and squarelv wlthln the drea of appllcatlon of that

rule" .

Because of the view he

took of the matter, Jacobs

J. did

not deal with the questlon of

Crown prlvileue.

Aickln J. aureed uenerally with Stephen

J., emphasisina

that "there is no cateuory or class simply of documents which

should not be disclosed"

(at p.108).

D, v. N.S.P.C.C.

and Sankey v. Whitlam take somewhat

different approaches but at least in part that is explicable by

the different factual situations involved.

I am not persuaded

that public interest immunity attaches to the operations of the

Buthorlty so a6 t o entitle it to wlthhold the production of any document from a court or tribunal having a leaitimate interest in

the contents of that document.

(It need hardly be sald that if

documents

are

covered

immunity

the

around

of public

Interest.

not

only

may

they

withheld

but

they

must

wlthheld.)

The reasons why I am not persuaded are as follows.

There is no ueneral prlnciple that documents may be

withheld from a court

or tribunal because they came into the

possession of the person holdinu them on a confidential basis. If

there is a ueneral

prmciple, it

1 s that the administration

justlce requires the full disclosure of all relevant evldence for

fairly dlsposlnq Interest mmunlty

proceedings,

The cateuories

public

are not closed: but they are not open without

2 7 .

restrlctlon. The replacement of the expresslon "Crown privllege"

with that of "publlc	mterest lmmunltv" (a chanue regretted by
/

Lord Scarman In

Ka=e)

should not dlsquise the fact that in

general terms "the immunity exlsts to protect from dlsclosure only

lnformatlon the secrecy of which is essential to the proper

workings of the aovernment of the state" (Lord Scarman in

N m

p. 1087)

That

is not to say that Immunity is confined to

departments or

organs of central government; it

may exist in the

case of statutory bodies. But, as Lord Scarman pointed out

Nasse at p.1087, "We are in the realm of public law, not private

right". Immunity was extended in

D_. v. N.S.P.C.C. because the

posltion

the

N.S.P.C.C.

the

enforcement

process

was

comparable with that of other law enforcement bodies. Sankev

witlam

placed much emphasis on the relationship between the

public interest and the proper functioning of government.

In Gurry's Breach of Confidence at

p.347 the matter is

put this way:

In a number of

cases the courts have held that the

confidentiality of communications will be preserved

where an extrinsically established public interest

can

only

vindicated

those

communications

have

immunity from forensic investigation".

As the author notes, this is much the language of Lord Simon in

D_. v. N.S.P.C.C. at p.239.

The Sacred Sites

Act exists to protect

a leqltlmate

concern

Aboriginal

people

the

Northern

Territory

that

their

sites

protected

from

intrusion

and

desecration. Whether that is a public interest in the sense

presently bemg canvassed may be debated though

it is no answer to

2 8 .

the clalm

of publ1.c Interest simplv

to say

that

Aboricrlnals

represent

only a

portlon (albelt a substantlal portion) of the

Territory population. The protection of sacred sltes is a matter

that bears on

the orderlv sovernment of the Terrltorv and has

legislative warrant

In both the Land Rights Act and the Sacred

Sites Act. But

I am not persuaded that such public interest as

exists can only be vlndlcated

if communications with the Authority

have a general immunlty from forensic investigation.

While

Authorlty

understandably

treats

confidential information gathered by it relating

sites, the

time must necessarlly come when information will have to be

disclosed in order to establish the existence of a sacred site,

whether it be for the purpose of

prosecutlon or

as a step

towards declaration under the

Act.

And the Authority readily

makes available to those with a bona fide interest maps showing

the boundaries of areas accepted by the Authority as sacred sites.

1s not possible, in my view,

to conclude in some overall

fashion that the Authority can operate only if the information it

possesses is immune from forensic investigation.

Now it is not

corollary of rejecting the concept of

public interest immunity in the case of the Authority that any

documents in its possession or in the possession of others for its

purposes must necessarily be disclosed to the public at large or

even to all those participatmg in the proceedings of a court or

tribunal. To begin with, a document must be relevant to an issue

being litigated and its productlon must be required to enable the

proceedings to

dlsposed of fairly. It is apparent from a

2 9 .

number of decislons that a court or tribunal has a dlscretion as to how much It wlll make public and what condltlons

It wlll attach

to the productlon of documents and the disclosure of lnformation.

As Lord Wllberforce polnted out In

N-as>g at p.1066:

"But where the court

is impressed

wlth

the need to

preserve confidentialty in a particular case, it will

conslder carefully whether the necessary lnformation

has been

can be obtalned by other means, not

involving

breach

confidence.

. . .

will

naturally consider whether Iustlce can be done by

special measures such as 'coverlng up' substituting

anonymous references for specific names,	or,	in rare
cases, hearing In camera".

The Commissioner ordered the production of some only of the documents the subject of the

5.54 notices and he indicated his

intention to restrict production to a limited number of persons participating in the inquiry, under strict conditions as to the

publication of material directed to be produced.	In the course of
his reasons the Commissioner said:

"But the most important consideration of all is the

protective measures which

I propose to adopt. The

production of the records sought will occur whilst I am

sitting in camera. Only myself, my associate, counsel

assisting, counsel for the Attorney-General, possibly

my consultant anthropologist and the researcher who

gathered the material will be present. They will not

be permitted to use any of

the information so learned

for any purpose other than the land claim".

It would seem that the Commissioner

has not yet given

precise directions as

to the circumstances in which the documents

are to be produced. At the close of his reasons he said:

"I have indicated that

I am prepared to take strict

protectlve measures to preserve the confidentlality

30.

these

records

and

ensure

that

the mformation

contalned In them

1 s used only for the

purposes of this

Inquiry. The precise nature

of those measures and the

restrlctions to be placed upon the lnspectlon

and use

of confldential materials is somethlna I wlll discuss further wlth counsel when the hearina resumes - if they

are not able	to agree upon	them between themselves in
the meantime.

I will consider sympathetically any request to conduct

the inqulry in camera if and when the questioning

touches upon secret sacred, private	or	confidential
matters.

Whilst I have indicated that

I will supervise the

inspection process, in my opinion that ought not be

necessary. Counsel should now be able to agree upon

the appropriate protective measures and the mechanical

arrangements for inspection, without my intercession,

and arranqe for that to take place before the hearing

resumes".

Presumably no precise directions have been given by the

Commissioner because the applications made to this Court have

brought the hearing of the land claim to a

halt.

It is apparent

that there are two quite distinct steps involved if documents are

produced in response to the

s .54

notices.

The

first is the

production of

the documents themselves to the Commissioner and a

decision by him as to the circumstances in which they will be made

available to those participating in the inquiry. The second

concerns the use that may be made of any of the material

produced.

may

be,

for

instance,

that

counsel

for

the

Attorney-General will wish to cross-examine a witness by reference to material produced, whether or not the witness is the author of any of that material. It is clear that the Commissioner is alive

to the problems that may arise when each of these steps is taken.

The resolution of those problems is essentially a matter for the

Commissloner in the conduct of the inquiry.

To reiect the proposltlon that publlc Interest ~mmunitv attaches to all documents In the possession

of the Authorltg and

to all documents that came lnto exlstence at Its

instigation is

not to sap that in the case

of a particular document there

may not

be an aspect of public Interest immunity which

a court or tribunal

must balance agalnst the publlc interest in favour of disclosure.

In effect the Cornmissloner took thls approach by going

conslder where the balance lap. had public lnterest

mmunity been

properly invoked.

His conclusion was "I would still say that the

balance of publlc interest tilts in favour of dlsclosure". This

conclusion was attacked both by the Authority and

Mr. Reyburn.

The

Attorney-General

submltted

that

balancing

process carried out by the Commissioner was

exercise of

discretion that could not be challenged by prerogative proceedings

or under the Judicial Review Act. Counsel referred to Gronow v.

Gronow (1980) 144 C.L.R.

513 where the High Court stressed that,

before an appellate court reverses a decision of a trial judge founded upon the exercise of a Judicial discretion, it must be

satisfied

he was plainly wrong

that his decision was no

exercise of his

discretion. The

fact

that

the

judge

gives

excessive weiuht to some factors is not of itself

a basis for an

appellate court to substitute Its discretion for that of the

j udae

"Discretion" may not be the

most appropriate description

for

the

evaluative

process

the

Commissioner

performed.

Furthermore,

the

constraints

placed

appellate

courts

decisions such as Gronow

v. Gronow must be read aaainst the

3 2 .

partlcular criterla spelled out	In s . 5 of the Judicial Revlew Act
where that Act has been Invoked.

Nevertheless I

am not persuaded

that, in any relevant

sense, the Commlssioner erred in his concluslon that the balance

public

Interest

tilted

favour

disclosure.

The

Commissioner appreciated the importance of confidentiality to the operations of the Authorlty and the effect that public disclosure

material,

least

certain

materlal,

might

have

upon

Aboriginals. Against these conslderations he took into account that the matter before him was a land claim initiated by

Aboriginals clalming

to be the traditional owners of the land in

question. The documents the subject of the s.54 notices were thought to have a bearing on questions of traditional ownership that the Commissioner was called upon to determine. The land

claim has implications, not only for the claimants but for a wide

range of persons in and around Tennant Creek; those persons have

an interest in seeing that all material relevant to questions of

traditional ownership and other matters which the Commissioner is

required to take into account are placed before the inquiry.

The

obligation

which

the

Act

imposes

upon

the

Commlssioner to ascertain whether the claimants or any other

Aborlginals are the traditional owners of the land claimed gives

the inquiry a character different to that of conventional court

proceedings. While, in practical terms, the issues may be defined

by those participating in the inquiry, the statutory obligation

cast upon the Commissioner remains.

3 3 .

Counsel €or Mr.

Revburn submitted that Information

of a

confldentlal nature gathered by

him

from

Aborlqlnals or made

avallable to

hlm

should not be required to be disclosed. The

point was sald to arise both as a form of professlonal prlvlleue

relating to anthropologists (in which respect it

has no relevance

to these applications) and also as

aspect

of the public

interest In favour of

maintaming confidences.

The relationship between anthropologists and Aboriginal informants was considered by the Commissioner at some length.

am not to be taken

agreeing with everything said by the

Commissioner on this matter; but

am not persuaded that, in

approaching the balance of public interest immunity and wider

aspects of the public interest, the Commissioner erred.

This is

not the place to attempt some definitive assessment of the legal

implications where anthropologists are possessed of information

acquired from Aboriginals in some relationship of confidence.

Indeed

doubtful

there

could

ever

a definitive

assessment for the matter must urn very much upon the circumstances in which information is acquired, the purpose for which it is required to be disclosed and any restrictions imposed

upon that disclosure. In the present case it must be remembered

that the

submitted that none of the documents ordered to be produced had

been shown to involve the adverse consequences adverted to by the

Central

Land

Council,

speaking

for

the

claimants,

Authority. Furthermore, the Council acknowledged that,

on such

evidence as there was and on such instructions as it had been able

to obtain, the claimants wished the documents produced	so that the
hearing mlqht continue.

Overlpinu all these conslderatlons are the protective

measures whlch the Commlssloner proposes to adopt.

There

is an

exerclse

dlscrectlon involved In determlnlnu the ranue

persons to whom the produced documents should

made avallable

and the clrcumstances in which the contents of those documents may

be the sub3ect of cross-examinatlon or of an independent inquiry

by the Commissioner himself. These are decislons of a procedural

nature with which the Court should be Slow to interfere. Adam

Brown Male Fashlons Ptv. Ltd.

Philip Morris Inc.

(1981) 148

C.L.R. 170

at p.177. That

1 s not to say that any decision the

Commissioner makes in this reaard

1s beyond challenge.

The Court

1 s presently concerned with the decision of

the Commlssioner that documents must be produced to him and that

they are not the subject

of public interest immunity because

their connection with the operations of the Authority.

That

decision has not been shown to be wrong. If it was wrong, it has

not been shown that the Commissioner erred in his weighing

competing

areas of public

interest

and

his

alternative

conclusion that the balance was in favour of disclosure.

In my view the application for judicial review should be

dismissed and

certiorari should be discharued. I would add that, in relation to

the admlssibillty of the affldavit of Wenten Rubentja, I have read

the reasons t o r Iudament of the Chief Judqe and aaree that the

objection to admlsslbilitp should not be upheld. Like the Chief

the

order

n1c.i for wrlts of

prohibition

and

3 5 .

Judqe, my conclusions do not depend upon the reception

Oi the

affidavit

The parties should

have liberty to apply on the question

of costs wlthln 21 days: in the absence of any application there

should be no order as

to costs.

I certify that this and the preceding

thirty-four pages are

a true copy of

the reasons for judgment herein of his

Honour Mr. Justice Toohey.

Associate

Dated: 27

NarCh

\ S S 6

[1986] FCA 85

27 Mar 1986