Commonwealth of Australia v Griffiths and Jones on behalf of the Ngaliwurru and Nungali Peoples & Anor

The proceedings before the High Court of Australia involved the Commonwealth of Australia as an appellant, and Mr. Griffiths and Lorraine Jones, on behalf of the Ngaliwurru and Nungali Peoples, as respondents. The matter concerned an application for orders restricting the publication and disclosure of certain sensitive material, specifically a volume titled "Commonwealth’s Book of Further Materials Volume Three (Gender Restricted)". The Northern Territory also appeared as an appellant.

The primary legal issue before the Court was whether to grant orders restricting the publication and disclosure of the gender-restricted volume. This application was put forward on two alternative bases: firstly, that such orders were necessary to prevent prejudice to the administration of justice, drawing parallels with the reasoning in *Obeid*; and secondly, by reference to the Court's dicta in *Hogan*, concerning situations where parties have proceeded on the basis of confidentiality even in the absence of formal contractual or equitable obligations. The Court was required to consider the findings of the trial judge regarding the value of secrecy of the information, the circumstances in which it was received and treated confidentially, the nature of the information itself being restricted by Aboriginal tradition according to gender and seniority, and the customary obligations and perceived risks associated with its disclosure.

The Court reasoned that the orders sought were necessary to prevent prejudice to the proper administration of justice, as provided for under sections 77RE(1)(b)(i) and 77RG(4) of the *Judiciary Act 1903* (Cth). The application was supported by affidavits and written submissions detailing the sensitive nature of the information and the potential adverse consequences of its unrestricted disclosure. The Court also considered the practicalities of managing such restricted material, including provisions for its access by Justices of the Court and legal representatives. The Northern Territory and the Commonwealth did not object to the making of the orders on the grounds relied upon by the applicants.

The Court made several orders, including extending time for the filing of certain documents and increasing page limits for written submissions. Crucially, the Court ordered that publication and disclosure of the gender-restricted volume be restricted in a specific manner, outlining conditions for its handling, access by legal representatives and Court staff, and disclosure to male counsel and parties. These orders were to operate until 28 days after the Court made final orders disposing of the appeals. Liberty was reserved to any party or intervener to apply for variation of these orders. The Court also indicated an intention to hear the appeals in Darwin in September of that year.