Gardiner v Attorney-General
[2020] VSC 224
•1 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 02090
| MARGARET GARDINER, VINCENT PETERS, ANNETTE XIBERRAS and ELIZABETH THORPE | Plaintiffs |
| v | |
| ATTORNEY-GENERAL OF THE STATE OF VICTORIA | First Defendant |
| and | |
| TAUNGURUNG LAND AND WATERS COUNCIL (ABORIGINAL CORPORATION) | Second Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 April 2020 |
DATE OF JUDGMENT: | 1 May 2020 |
CASE MAY BE CITED AS: | Gardiner v Attorney-General |
MEDIUM NEUTRAL CITATION: | [2020] VSC 224 |
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PRACTICE AND PROCEDURE – Notice to produce – Plaintiffs seeking production of ‘Part A threshold statement’ provided by second defendant to first defendant to initiate negotiations under Traditional Owner Settlement Act 2010 (Vic) – Second defendant claimed document subject to public interest immunity – Whether public interest immunity attaches to information about Aboriginal culture and traditions – Whether document provided and received in confidence – Whether disclosure would impair future performance of governmental functions under Traditional Owner Settlement Act 2010 (Vic) – Document not subject to public interest immunity – Consideration of appropriate confidentiality regime – Supreme Court (General Civil Procedure) Rules2015 (Vic), r 35.08 – Evidence Act 2010 (Vic), s 130.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr C Gunst QC with Mr T Smyth | Holding Redlich |
| For the First Defendant | Mr AC Neal QC with Ms EA Bennett | Matthew Hocking, Acting Victorian Government Solicitor |
| For the Second Defendant | Mr MLL Albert | First Nations Legal and Research Service |
HER HONOUR:
On 26 October 2018, the Attorney-General for the State of Victoria entered into the Taungurung Recognition and Settlement Agreement (RSA), under s 4 of the Traditional Owner Settlement Act 2010 (Vic) (Settlement Act). The RSA was entered into with the Taungurung Clans Aboriginal Corporation, now known as the Taungurung Land and Waters Council. It is part of a settlement package that includes several other agreements, including the Taungurung Indigenous Land Use Agreement (ILUA), entered into under the Native Title Act 1993 (Cth).
The RSA recognises the traditional owner rights of the Taungurung, the traditional owner group represented by the Council, in relation to public land in the area covered by the agreement. Broadly speaking, the agreement covers an area of Victoria including Mt Buller, Lake Eildon, the Upper Goulburn Valley, and parts of the Alpine, Lake Eildon, and Buffalo national parks.[1] It extends west to the Campaspe River and Lake Eppalock, north to the Ovens River near Wangaratta, and borders Wurundjeri country to the south.
[1]A detailed description of the agreement area is set out in Schedule 1 of the RSA.
The settlement package is yet to be fully implemented. If and when that occurs, it will confer significant benefits on the Taungurung and its members. In particular, if the ILUA is registered, it will bind all persons holding native title in relation to any of the land or waters in the agreement area, who are not already parties to the agreement. Its effect will be to settle all native title claims in respect of the agreement area.
In this proceeding, the plaintiffs seek judicial review of the Attorney-General’s decision to enter into the RSA. They do so based on a statement of reasons provided by former Attorney-General Martin Pakula, dated 28 February 2019.[2] They seek declarations that the decision to enter into the RSA was unlawful and incompatible with their cultural rights protected by s 19(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). They also seek orders quashing the decision and compelling the Attorney-General to make a further decision according to law.
[2]Exhibit DS-1 to Affidavit of David Shaw dated 10 May 2019 (Reasons).
The plaintiffs’ case is that they are Aboriginal elders of the Ngurai Illum Wurrung and the Waywurru groups. Each of them has made an affidavit setting out their ancestral connections with one or both of these groups. The plaintiffs dispute that the Taungurung are the traditional owners of the entire area covered by the RSA. They claim that the Ngurai Illum Wurrung are the traditional owners of country in the Middle Goulburn to the north and west of Seymour, extending west to the Campaspe River and Murchison, and north to about Toolamba. They also claim that the Waywurru are the traditional owners of an area around Wangaratta on the Ovens River, including the towns of Benalla, Chiltern, Wahgunyah, Beechworth, and Myrtleford.[3]
[3]The plaintiffs have also filed an affidavit of Gary John Murray, who is a descendant of Dhudhuroa ancestors. Mr Murray claims that the agreement area extends into Dhudhuroa country in the Upper Ovens Valley and around Mount Buffalo.
The plaintiffs commenced the proceeding against the Attorney-General in May 2019 and, in June 2019, joined the Council as a second defendant. The proceeding is listed for trial in mid-June 2020, although a number of interlocutory steps remain to be completed.
The Attorney-General relies on an affidavit of Dean Cowie made on 30 July 2019. Mr Cowie is the Director of the Native Title Unit in the Department of Justice and Community Safety. His affidavit referred to, but did not exhibit, a document identified as the Part A Threshold Statement. He explained that the Statement was presented by the Taungurung to the State in September 2013, on a confidential and without prejudice basis. It was on the basis of the information provided in the Statement that the State determined to negotiate the RSA with the Taungurung traditional owner group, represented by the Council.
On 15 August 2019, the plaintiffs served a notice to produce on the Attorney-General, requiring production of various documents referred to in Mr Cowie’s affidavit, including the Statement. The Attorney-General did not produce the Statement, on the basis that the Council had provided it confidentially, and had not released the Attorney-General from its requirement that it be kept confidential.
The plaintiffs pressed for production of the Statement, and the Council objected to production on the ground that the Statement was subject to public interest immunity. The parties were unable to agree on a regime for production of the Statement on a confidential basis, and so on 14 April 2020 I heard argument as to whether the Attorney-General should be required to produce the Statement.
For the reasons that follow, I have determined that the Statement is not subject to public interest immunity. The Attorney-General is required to produce the Statement to the Court, and it may be inspected by the plaintiffs subject to them providing confidentiality undertakings.
Notice to produce documents
The plaintiffs’ notice to produce was served pursuant to r 35.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). That rule provides:
(1) A party to a proceeding may serve on any other party a notice requiring that other party to produce the documents mentioned in the notice on any application in or at the trial of the proceeding.
(2) Unless the Court otherwise orders, the party on whom the notice is served shall produce on the application or at the trial such of the documents mentioned in the notice—
(a) as are in that party's possession, custody or power; and
(b) which that party does not object to produce on the ground of privilege.
(3) Where the party on whom the notice is served fails to comply with the notice, the Court may order that the party produce the document or give such directions for the proof of any matter in relation to the document, including the contents of the document and its making, delivery or receipt, as it thinks fit.
The notice to produce could also have been served under r 29.10 of the Rules, which applies in any proceeding, where a party makes reference to a document in a pleading or affidavit. In that event, another party may, by notice to produce, require production of the document for inspection.
A notice to produce served on a party under either rule has the same effect as a subpoena for production.[4] Unless the notice is set aside, or the document sought is privileged, the party served with the notice must produce the document sought.[5]
[4]Jefferson Ford Pty Ltd v Ford Motor Co of Aust Pty Ltd [2007] VSC 450, [19]; Cargill Australia Ltd v Viterra Malt Pty Ltd (No. 19) [2018] VSC 798 (Cargill 19), [25]–[26].
[5]Cargill 19, [24]–[28].
It was initially submitted by the Council that the plaintiffs should have sought discovery of the Statement, and that their use of a notice to produce was somehow improper.[6] This submission was wisely not pressed at the hearing.
[6]Relying on De Simone v Legal Services Board [2015] VSC 9, [67(g)], which concerned an application to examine a non-party before trial under r 40.12 and r 41.01 of the Rules.
Although the Court has wide powers in relation to discovery,[7] it is rarely ordered in judicial review proceedings.[8] Indeed, Order 29 of the Rules, which deals with discovery of documents, does not apply to judicial review proceedings commenced by originating motion.[9] There was nothing improper about the plaintiffs’ service of a notice to produce a document referred to in an affidavit of another party, which is unquestionably relevant to the proceeding. To the contrary, a notice to produce is an appropriate means of seeking production of a specific document that is relevant to resolution of the issues in dispute in a judicial review proceeding.
[7]Civil Procedure Act 2010 (Vic), s 55.
[8]See e.g. Moodie v Racing Integrity Commissioner [2017] VSC 175, [35].
[9]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 29.01. Rule 29.10 is an exception to this general rule. See also r 56.01(2), in relation to the commencement of a judicial review proceeding.
Part A Threshold Statement
The Statement was prepared for and submitted on behalf of the Taungurung to formally initiate negotiations with the State for an agreement under the Settlement Act. It was prepared as required by the ‘Threshold Guidelines for Victorian traditional owner groups seeking a settlement under the Traditional Owner Settlement Act 2010’, published in 2013 by the Native Title Unit of the then Department of Justice.[10] The Guidelines set out a process for traditional owner groups to seek entry into negotiations with the State towards a settlement under the Settlement Act, by lodgement of a threshold statement. They also set out the threshold matters to be addressed, and the process for the State’s consideration of a threshold statement.
[10]Affidavit of Dean Cowie dated 30 July 2019, Exhibit DC-1.
The Guidelines contemplate that a threshold statement will be prepared in two parts. The Part A threshold statement is to contain six items:[11]
A1. Statement of intent to negotiate
A2. Traditional owner group statement of association to country
A3. Description and basis of traditional owner group
A4. Description and basis of proposed agreement area
A5. Research process overview, chronology and findings
A6. Traditional owner group decision-making
[11]Department of Justice, Threshold Guidelines for Victorian traditional owner groups seeking a settlement under the Traditional Owner Settlement Act 2010, 2013 (Guidelines), 29.
Detail is provided in the Guidelines about the purpose and expected content of each of these items. In relation to item A2 – Traditional owner group statement of association to country – the following guidance is given:[12]
Purpose
The traditional owner group is asked to give expression to its relationship to country through the statement of association. This corresponds to the purpose of the Traditional Owner Settlement Act to:
“advance reconciliation and promote good relations between the State and traditional owners and to recognise traditional owner groups based on their traditional and cultural associations to certain land in Victoria …”
(see s.3 of the Traditional Owner Settlement Act 2010)
[12]Guidelines, 30–33.
The statement of association is intended to give a direct voice to the traditional owner group members themselves, as experts in their own culture, traditions and identity.
The abiding association of members of the traditional owner group to their country is a foundational threshold with practical implications, given that the Traditional Owner Settlement Act establishes an agreement making framework regarding traditional owner access to, and ownership or management of, public land and natural resources. The ‘lived’ association of traditional owner group members to their country will support the sustainable implementation of the on-the-ground agreements offered by the Traditional Owner Settlement Act. … Agreement-making proceeds on the basis of the group holding an active traditional and cultural relationship to country, and not just because they are able to show descent from ancestors …
Content
The statement should identify the traditional owner group name that the group would wish the wider world to refer to them as. The state is not concerned whether or not a group name has a provenance from the contact period. Group names based on geographic locations or more contemporary usage are also acceptable, provided there is broad consensus about such terminology amongst the group.
The statement should also describe in broad terms the country with which the group has traditional and cultural association, such as by way of large scale geographical features or catchments.
…
The statement should describe elements of the relationship of the group to their country – that is, their contemporary ‘traditional and cultural association’ to country. This can be by way of statements about the traditional owner group’s worldview and descriptions of sample contemporary practices or activities the group undertakes that show such association. Statements indicating features shared by the group as a whole, may be further augmented by statements made by key individual members of the traditional owner group (who may be de-identified or not, as preferred by the traditional owner group members).
The Native Title Unit understands there may be elements of association that are shared by multiple traditional owner groups; for example, cultural practices shared amongst groups within a common ‘nation’, or perhaps shared over larger scale domains. However, the association of each group will be unique in its reference to particular country.
The following are examples of topics a statement of association may address (to be clear, it is not intended to be an exhaustive list of matters each of which must be addressed):
•key stories or moiety beliefs that express the traditional owner group’s worldview and understanding of country and people;
•responsibilities for caring for country that group members currently take up, when the opportunity arises – for example, working on country in partnership with land and natural resource management agencies, or performing welcomes to country;
•contemporary responsibilities for the management of cultural heritage, including appointment as a ‘registered Aboriginal party’ under the Aboriginal Heritage Act by the Victorian Aboriginal Heritage Council;
•community activities that involve access to the area;
•use of natural resources in the area, such as fishing, hunting, camping and foraging for bush craft materials or for medicinal purposes;
•transmission of knowledge to others, including how information was passed down to current members, and contemporary efforts to transmit knowledge to younger generations.
For the purposes of the Guidelines, ‘traditional’ denotes linkages with the past that are actively kept alive by traditional owner group members, and is not restricted to ‘activities or features in pre-contact Aboriginal society’.[13] Further, the term ‘cultural’ association refers to shared features relating to the relationships between traditional owners and their country, such as shared dreaming stories and cultural beliefs.[14]
[13]Guidelines, 32.
[14]Ibid.
The Guidelines then set out the purpose of item A3 – Description of the traditional owner group and its basis, as follows:[15]
[15]Guidelines, 33.
Purpose
The group description enables the state to understand who it is considering entering negotiations with, and therefore, who may ultimately be recognised by the state as the traditional owner group for a given area. The basis for the group description must provide a sound rationale for why the particular description of the given traditional owner group is right or appropriate.
The question of who [is] in the group will be of likely interest to other Victorian traditional owners and Aboriginal people. The description of the traditional owner group will be used in the threshold notification process described in Part 3 and Appendix 3 of these guidelines – a process that advises the wider traditional owner community in Victoria of the group that is putting itself forward to seek a settlement with the state.
After setting out the State’s expectations as to inclusiveness and size of a traditional owner group, and the technical description of the group, the Guidelines turn to the definition of group membership:[16]
[16]Guidelines, 34–35 (footnotes omitted).
Combined factors of membership
It is expected that there may be a number of factors that operate in combination to define and describe the group membership. Traditional owner groups may not consider that descent alone, as discussed below, is sufficient to denote membership. The combined factors will need to be agreed by the full group.
In evaluating the description, the state will be looking for coherence, clarity and inclusiveness. The right of traditional owners to determine their own identity is foundational. However, the basis of traditional owner group decisions about who is in or out of the group must not be arbitrary or exclude persons who can sustain a sound argument that they should be included, given the significance of the rights being recognised through a settlement, and the opportunities and resources that may flow from settlement agreements.
Factors concerning group membership will need to combine factual underpinnings and clear group decision making processes. The state also needs to be satisfied that the question of how membership is determined is stable and is consented to by the full group, given that settlement agreements will be binding into the future.
…
The Guidelines make it clear that there are two sources for the basis of the traditional owner group description – the research findings, and the outcomes of decision-making by the traditional owner group itself. That is, the traditional owner group’s definition of membership is expected to have the factual underpinning of ‘robust and broad-ranging historical and anthropological research’.[17]
[17]Guidelines, 41.
Item A4 concerns a description of the proposed agreement area and its basis. A detailed description of the area is required, along with a map. Importantly:[18]
The basis for the area description must provide a sound rationale for the proposed settlement area as the right or appropriate country for the traditional owner group described earlier.
[18]Guidelines, 37.
The Guidelines contemplate that there may be boundaries that are not settled with neighbouring traditional owner groups, and that there may be country that is shared with neighbouring groups. The required basis of the area description is set out:[19]
[19]Guidelines, 40.
Basis of the area description
As with the basis for the description of the traditional owner group discussed earlier, the state considers that there will be two key sources for the basis of the proposed agreement area:- (i) the research findings, and (ii) the outcomes of decision-making of the traditional owner group, including any agreements reached with neighbours.
Each of these two sources for the basis are elaborated on in later sections of the threshold statement. What should be presented in this part of the threshold statement, however, is specific identification of the relevant key research outcomes and the relevant full group decisions that support the description of the proposed settlement area.
The basis needs to address the foundation for the particular boundaries proposed. This should include identification of neighbouring traditional owner groups and the extent of mutual boundaries between traditional owner groups.
Item A5 concerns the research that informs and, to some extent, underpins the descriptions of the traditional owner group, as set out in in items A2 and A3, and the basis of the proposed agreement area in item A4. The Guidelines require the key findings of the research to be drawn out and presented in summary form, in relation to the issues of:[20]
•the membership or composition of the traditional owner group;
•the location of their traditional country and proposed settlement area; and
•their traditional and cultural association to the area.
[20]Guidelines, 42.
Appendix 3 of the Guidelines sets out the procedures that the State will follow for ‘threshold notification’, once it has received a threshold statement from a traditional owner group with intent to enter into negotiations for an agreement under the Settlement Act. The purpose of the threshold notification is to:[21]
[21]Guidelines, 64.
a.notify the wider Victoria traditional owner community that the state has received a threshold statement from a traditional owner group seeking a settlement under the TOS Act; and
b.provide members of Victoria’s traditional owner community with the opportunity to comment on whether:
i.the traditional owner group seeking settlement is the right traditional owner group for the area;
ii.the group description includes all the traditional owners for the area; and
iii.all members of the group have had a reasonable opportunity to participate in the full group decision-making that has led to the lodgement of the threshold statement.
The Guidelines contemplate that the threshold notification involves publication of either the full Part A threshold statement received from the traditional owner group, or an agreed public statement that must contain, at a minimum:[22]
[22]Guidelines, 67.
a.a description of the traditional owner group, and a summary of its basis;
b.a description of the proposed settlement area, and a summary of its basis;
c.a map of the proposed settlement area that also shows the boundaries of appointment areas and application areas for registered Aboriginal parties under the Aboriginal Heritage Act;
d.a summary of the research process undertaken and its chronology;
e.a broad description of the full group decision-making processes and how/when the threshold statement was endorsed by the full group;
f.a contact person or representative for the traditional owner group; and
g.any other information agreed between the Native Title Unit and the traditional owner group.
In this case, the Statement was submitted on behalf of the Council by Native Title Services Victoria (NTSV) in September 2013. The covering letter stated that the Statement was provided to the State ‘on a without prejudice and confidential basis’. I discuss the claim of confidentiality, and the State’s response to it, below.
The Native Title Unit and NTSV agreed on a summary of the Statement, which was published in 2014 as the agreed public statement for the notification process. Mr Cowie exhibited this public summary to his affidavit.[23] It described the Taungurung traditional owner group, including by identifying twelve Taungurung ancestors from the mid-nineteenth century. It also gave a detailed description of the proposed agreement area asserted to be the traditional country of the Taungurung people. As to the basis of these descriptions, the public summary said:
Basis of traditional owner group description
The basis of the traditional owner group description comes from:
•the research findings from research undertaken by Native Title Services Victoria Ltd (NTSV), and
•the decision-making of the Taungurung traditional owner group, including their discussions or agreement-making with neighbouring traditional owner groups.
[23]Affidavit of Dean Cowie dated 30 July 2019, exhibit DC-2.
The membership criteria, described above, are considered by NTSV to be clearly demonstrated in the practices of contemporary members of the Taungurung traditional owner group.
Taungurung ancestors have been identified through interviews with contemporary Taungurung people, combined with analysis of the historical record. Supporting documentation includes birth, marriage and death certificates, nineteenth century community records and the work of nineteenth and twentieth-century ethnographers and other researchers.
The membership criteria and ancestors were endorsed by a series of full group meetings held in 2012 and 2013. This follows more than a decade of discussion and deliberation amongst members of the Taungurung traditional owner group, including at community workshops and meetings.
…
Basis of the proposed agreement area
The basis of the proposed agreement area comes from the research findings as well as the decision-making of the Taungurung traditional owner group, including agreement making with neighbours.
Research has been undertaken by NTSV and its predecessor organisation (Mirimbiak Nations Aboriginal Corporation) over a period of some 15 years, initially intermittently. Research has included analysis of the historical record in relation to both the Taungurung and neighbouring traditional owner groups, as well as informant based research about the oral traditions and knowledge of the Taungurung people.
The Taungurung traditional owner group’s own discussions about the extent of their traditional country have taken place over a similar period of time. The group has held its own workshops and discussions over the years. In the lead-up to finalisation of the threshold statement, members of the Taungurung full group also considered research findings presented by NTSV.
…
The summary then referred to discussions and proposed discussions with neighbouring traditional owner groups. There was a reference to an exchange of letters with the Dhudhuroa Waywurru Nations Aboriginal Corporation regarding the north-eastern boundary of the proposed agreement area. There was no mention of discussions with representatives of the Ngurai Illum Wurrung.
The public summary outlined a chronology of the historical and anthropological research undertaken by NTSV and its predecessor organisation between 1998 and 2013, and described the research methods used. It did not, however, include a summary of the substance of any of the research findings.
Legitimate forensic purpose
A notice to produce is served for a legitimate forensic purpose where the document sought ‘is not only relevant to the proceeding, but will materially assist in resolving an issue in dispute’.[24] Neither defendant disputed that the plaintiffs had a legitimate forensic purpose in serving the notice to produce, and both of them accepted that the Statement is relevant to the proceeding. I accept the plaintiffs’ submission that the Statement is a ‘substantial and foundational’ document, both for the negotiation of the RSA under the Settlement Act, and in relation to the claims made by the plaintiffs in this proceeding. The Statement is centrally relevant to the plaintiffs’ claims, in at least two ways.
[24]Cargill 19, [28].
Charter claim
First, the plaintiffs’ claim that the Attorney-General’s decision to enter into the RSA was incompatible with their cultural rights under s 19(2) of the Charter is based on a contention that the RSA wrongly included Ngurai Illum Wurrung and Waywurru country in the area subject to the agreement. They contend that this country is not Taungurung land, and that the effect of including it in the RSA area is to deny their rights to enjoy their identity and culture, and maintain their ‘distinctive spiritual, material and economic relationship’ with their traditional land and waters.[25] This contention is disputed by both defendants.
[25]Further amended originating motion for judicial review dated 31 March 2020, grounds 11–12.
The Attorney-General’s reasons for decision addressed the inclusion of the disputed land in the RSA area. In relation to the disputed land in the north-west of the RSA area, claimed to be Ngurai Illum Wurrung country, the Attorney-General accepted the advice of the Native Title Unit that ‘the Ngurai Illum were best represented by the Taungurung group case concept, for reasons including that there was no prospect of the Ngurai Illum being a group capable of entering into its own separate RSA’.[26] As to the land in the east of the RSA area, claimed by the plaintiffs to be Waywurru land, the Attorney acted on information ‘that historical and anthropological research favoured the disputed eastern area being Taungurung country’.[27]
[26]Reasons, [25(a)(i)].
[27]Reasons, [25(b)(ii)].
The Attorney-General’s reasons also addressed s 19(2) of the Charter:[28]
(f)The Charter, including the requirement under s 38 of the Charter to give proper consideration to, and act compatibly with, any relevant human rights in deciding to enter into the RSA. I specifically considered ss 24 and 19(2) of the Charter, being the right to a fair hearing, and Aboriginal peoples’ rights to maintain their distinct cultural rights, when determining to approve the RSA.
(g)…
(h)The impact of s 19(2) of the Charter, dealing with distinct cultural rights. I was advised in the Brief of 25 October 2018 that none of the four limbs of s 19(2) would be impacted by the RSA because the State was negotiating with, and entering into the RSA, with all of the people who have a connection under traditional law and custom for the RSA area. I was further advised that if the right in s 19(2)(d) was engaged and limited, any such limitation would be justifiable by reference to the factors in s 7(2) and would therefore be compatible with the Charter.
(i)Whether it was appropriate to excise the areas of land from the RSA Area which were disputed areas by competing groups. Based on my understanding of the process that had been undertaken, and the information I had received, I determined that to do so would place an unfavourable limitation on the Taungurung’s rights under s 19(2) of the Charter and determined against this course of action.
(j)That three of the Holding Redlich clients (Ms Gardiner, Mr Peters and Ms Thorpe) are eligible to enjoy the benefits of the RSA as members of the Taungurung to the extent to which they wish to participate.
[28]Reasons, [33].
Mr Cowie’s affidavit provides some explanation of why the Native Title Unit advised the Attorney-General that country associated with the Ngurai Illum Wurrung should be included in the RSA area. This advice was informed by historical and anthropological information provided by NTSV on behalf of the Taungurung, which concluded that the Ngurai Illum Wurrung and the Taungurung had common language, laws and customs. It seems likely that this information was included in the Statement, as part of item A5.[29]
[29]Affidavit of Dean Cowie dated 30 July 2019, [29]–[31].
It is apparent from the Attorney-General’s reasons and Mr Cowie’s affidavit that resolution of the plaintiffs’ Charter claim will be assisted by information contained in the Statement. In particular, the research findings required to be included in item A5 of the Statement appear to have informed the Attorney-General’s decision to enter into the RSA with the Taungurung, notwithstanding the asserted interests of the Ngurai Illum Wurrung and the Waywurru in parts of the RSA area.
Procedural fairness claim
Second, the plaintiffs claim that they were denied procedural fairness in relation to the Attorney-General’s decision to enter into the RSA, because he did not disclose to them the Statement or the substance of the information in it, and they had no opportunity to make submissions in light of that information. As I have outlined above, at present it appears that there was information in the Statement that was material to the Attorney-General’s decision that was not included in the public summary made available to the plaintiffs.
The defendants have not yet formalised their responses to this contention. They have, however, foreshadowed an argument that the plaintiffs were not denied procedural fairness, because they had opportunities both to participate in Taungurung decision-making processes, and to make submissions during the notification process in response to the public summary of the Statement. In other words, they contend that any denial of procedural fairness was not material to the outcome.[30]
[30]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [45]–[46] (Bell, Gageler and Keane JJ).
It is difficult to see how this argument could be determined without comparing the information in the Statement with the information provided to the plaintiffs in the public summary. Production of the Statement will assist in resolving the plaintiffs’ procedural fairness ground.
Claimed public interest immunity
The Attorney-General did not object to production of the Statement, and did not claim that it is privileged from production on the ground of public interest immunity.
The Council resisted production of the entire Statement, on the basis of public interest immunity. It submitted as follows:
(a) Public interest immunity may be claimed not only by the executive government, but by bodies exercising statutory functions.[31] A claim of public interest immunity can be made by the Council’s representative, the First Nations Legal and Research Services (FNLRS), the successor to NTSV. This is because both FNLRS and NTSV have acted in the capacity of a native title services provider, performing the statutory functions of a representative body under the Native Title Act.
[31]Relying on Ebner v Official Trustee in Bankruptcy [2000] FCA 182, [17].
(b) A recognised category of public interest immunity is ‘secret and sacred Aboriginal information and beliefs’.[32] In light of s 19(2) of the Charter, this category should be expanded to protect the information in the Statement ‘because of its cultural and personal significance to the Aboriginal Victorians who gave it’.[33]
[32]Relying on Aboriginal Sacred Sites Protection Authority v Maurice; Re Warumungu Land Claim (1986) 10 FCR 104, 114–115 (Woodward J).
[33]Second Defendant’s Submissions on Threshold Statement Disclosure dated 9 April 2020, [10].
(c) The Statement contains personal and sensitive information about the connection that members of the Taungurung have with their country. This information is at the core of the Aboriginal identity of members of the Taungurung. Disclosing it would deny them the right to enjoy their identity, both because it is deeply personal and because of the potential for it to be misused.
(d) The information was provided in confidence to the State for the purposes of negotiating the RSA. Disclosure of this information risks losing the trust of the Taungurung people and other Aboriginal Victorians, and inhibiting the flow of information to the State in relation to other proposed agreements under the Settlement Act.
(e) Disclosure of the Statement would also involve harm in the form of likely misuse of the information in public forums. The Council relied on an affidavit of Rainer Mathews, a senior lawyer employed by FNLRS, in which he conveyed the ‘widespread and deeply felt concern’ of members of the Taungurung community about production of the Statement in this proceeding. Mr Mathews deposed to particular concern that personal information such as family histories, assertions of Taungurung identity and clan affiliation, and statements of cultural authority would be used by the plaintiffs or members of their families to publicly attack the cultural identity and authority of Taungurung individuals. He exhibited several Facebook posts attacking the Taungurung community and people within it, as examples of the kinds of attacks that are feared.[34]
(f) These likely harms to the public interest outweigh the evidentiary value and the importance of the Statement to the issues in this proceeding. On that basis, no order for production should be made.
[34]Affidavit of Rainer Mathews (not affirmed) dated 9 April 2020, [14]–[15].
The plaintiffs submitted that neither the Statement or the information in it could attract public interest immunity. Neither the Council nor FNLRS were governmental bodies that could claim public interest immunity, and the Statement does not concern ‘matters of state’ to which s 130 of the Evidence Act 2008 (Vic) applies, or governmental information of the kind that public interest immunity protects.
Public interest immunity – General principles
In Ryan v State of Victoria,[35] the Court of Appeal summarised the general principles that govern a claim of public interest immunity, as follows:[36]
The common law doctrine of public interest immunity protects from compulsory disclosure, documents or information where disclosure would be injurious to the public interest. Assessing whether a claim of public interest immunity ought to be upheld requires the court to weigh the public interest that would be harmed by the production of the evidence against the frustration or impairment of the administration of justice if the evidence was withheld.
…
It is well accepted that the categories of public interest are not closed. Categories of public interest include claims made in relation to national security, Cabinet deliberations, high-level advice to government, intra-government communications or negotiations, police informers, other types of informers, police investigations, and the activities of intelligence officers.
…
In undertaking the balancing exercise, the court will generally have regard to a number of considerations. These include whether non-disclosure would impede the accused’s right to a fair trial, the evidentiary value and importance of the documents to the issues, whether ordering disclosure would cause sources of information to ‘dry up’, whether preserving candour would facilitate the public function in issue, and whether the material is already in the public domain or has current sensitivity. The court is also to accord weight to an assertion by an authorised representative of government that the public interest would be at risk in the event of disclosure.
[35][2015] VSCA 353 (Ryan).
[36]Ryan, [53], [56]–[57] (citations omitted).
There is no practical difference between public interest immunity at common law and s 130 of the Evidence Act.[37] Section 130 permits exclusion of ‘information or a document that relates to matters of state’ where the public interest in admitting the evidence is ‘outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document’.[38]
[37]Ryan, [58].
[38]By virtue of s 131A of the Evidence Act, s 130 is also a basis for a party to object to production of a document in answer to a notice to produce.
Although the categories of public interest that are protected by the immunity are not closed, public interest immunity is concerned with protecting the operation of government.[39] To use the words of s 130, it is concerned with ‘matters of state’. It does not extend ‘to any circumstance in which exclusion should be supported on the grounds of public policy - and in that sense involve a “public interest”’.[40]
[39]State of Victoria v Seal Rocks Pty Ltd (2001) 3 VR 1, [17]; R v Young (1999) 46 NSWLR 681, [53]–[57] (Spigelman CJ, Abadee, Barr and James JJ agreeing); Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, [24]–[34] (Warren CJ), [53]–[55] (Maxwell P).
[40]R v Young, [53] (Spigelman CJ).
Can the Council claim public interest immunity?
In this case, no claim of public interest immunity is made by the Attorney-General on behalf of the executive government of the State. The Attorney-General took an ‘agnostic’ position on the Council’s claim that the Statement is subject to public interest immunity, the primary concern being to respect the claim for confidentiality made by the Taungurung traditional owner group when they submitted the Statement.
It is significant, but not determinative, that the claim of public interest immunity is not made by the executive government, but by the Council. It is significant because an assertion by an authorised representative of government that the public interest would be at risk if the Statement were to be disclosed would add weight to the Council’s claim.[41] It is not determinative, because ‘a claim to public interest immunity, though ordinarily taken by the Crown, is not a conventional right capable of being waived at will’.[42] Public interest immunity is ‘a right by way of an immunity or a privilege which enures in the body politic and indeed in the nation (or relevant polity) as a whole, and not merely in the executive’.[43]
[41]Ryan, [57], citing Sankey v Whitlam(1978) 142 CLR 1, 44, 46 (Gibbs ACJ), 59–60 (Stephen J), 96 (Mason J).
[42]Seal Rocks, [18].
[43]Seal Rocks, [17].
It follows that the Council may claim that the Statement is subject to public interest immunity. The claim having been made, it is ‘the court’s duty to consider the possible application of the immunity, … subject only to satisfying itself, after appropriate argument, that it does apply and that any relevant countervailing factors ought not to deny the immunity’.[44]
[44]Seal Rocks, [17].
That said, I do not accept the Council’s submission that the fact that the Statement was prepared first by Mirimbiak Nations Aboriginal Corporation and then by NTSV, and submitted by NTSV, necessarily means that the Statement attracts public interest immunity.
During the preparation of the Statement, first Mirimbiak and then NTSV was the native title service provider that performed the functions of a ‘representative body’ in Victoria under Pt 11 of the Native Title Act. A ‘representative body’ has various functions that are referred to in Pt 11, Div 3 of the Native Title Act.[45] These include facilitation and assistance functions, of researching and preparing native title applications, and assisting persons who may hold native title in negotiations relating to indigenous land use agreements and other agreements related to native title.[46] A representative body also has dispute resolution functions, and an agreement making function.[47] It may be funded by the Commonwealth to perform any or all of these functions in respect of a specified area.[48]
[45]Native Title Act 1993 (Cth), s 203B.
[46]Native Title Act, s 203BB.
[47]Native Title Act, ss 203BF and 203BH.
[48]Native Title Act, ss 203FE.
The functions that are performed by a representative body under the Native Title Act are an integral part of the statutory scheme for the recognition and protection of native title, and the determination of claims to native title.[49] However, the fact that these important functions are defined by statute does not, in my view, mean that representative bodies can be characterised as governmental, or that all documents prepared by them relate to ‘matters of state’. To the contrary, a representative body stands outside government and represents the interests of native title holders and persons who may hold native title in the area for which it is the representative body.
[49]Northern Land Council v Quall (2019) 367 ALR 216, [129]–[131] (Griffiths and White JJ), [155] (Mortimer J).
In any event, what matters in determining a claim of public interest immunity is ‘the character of the information for which protection is sought, not the nature of the agency which holds the information’.[50] Resolution of the Council’s claim here depends on the nature of the information in the Statement.
[50]Royal Women’s Hospital, [54] (Maxwell P).
Is the Statement subject to public interest immunity?
I have already set out in some detail the information that is required to be included in a Part A threshold statement, and the public summary of the Statement submitted by the Taungurung. The information that I understand is in the Statement is not obviously concerned with the conduct of governmental functions or matters of state. Rather, it is a statement of the basis on which the Taungurung claimed to be traditional owners of a defined area of Victoria who were entitled to negotiate an agreement with the State under the Settlement Act.
The Council relied on the decision of a Full Court of the Federal Court in Aboriginal Sacred Sites Protection Authority v Maurice; Re Warumungu Land Claim,[51] which concerned an order of the Aboriginal Land Commissioner, made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), requiring the Aboriginal Sacred Sites Protection Authority to produce documents relevant to a land claim. The Commissioner had rejected the Authority’s claim that public interest immunity attached to the documents. The Full Court held that the documents were subject to public interest immunity, but upheld the Commissioner’s alternative conclusion that the public interest in disclosure of the documents outweighed the public interest in maintaining confidentiality.
[51](1986) 10 FCR 104 (Warumungu Land Claim).
While all three members of the Full Court agreed in the result, their reasoning differed markedly. The Council placed particular emphasis on the conclusion of Woodward J that:[52]
… in this country, a fresh category of public interest immunity should be recognised, covering secret and sacred Aboriginal information and beliefs.
However, neither Bowen CJ nor Toohey J was prepared to extend public interest immunity in this way.
[52]Warumungu Land Claim, 114–115 (Woodward J).
Bowen CJ held that public interest immunity attached to the documents because, in order to perform its statutory functions the Authority had to be able to offer Aboriginal suppliers of information an assurance that the information supplied would be kept confidential and, if the assurance was breached, Aboriginal sources of information would dry up and individual informants may be held accountable by other Aboriginal people and may suffer some detriment.[53] This conclusion was a fairly orthodox extension of the ‘protection of informers’ category of public interest immunity.[54]
[53]Warumungu Land Claim, 110 (Bowen CJ).
[54]Discussed by Bowen CJ at 109.
Toohey J was not persuaded that the documents were subject to public interest immunity. After noting that confidentiality alone is not sufficient, his Honour observed that ‘[t]he categories of public interest immunity are not closed; but they are not open without restriction’, and that the immunity exists to protect from disclosure only information the secrecy of which is essential to the proper functioning of government.[55] Having regard to the functions and operations of the Sacred Sites Authority, Toohey J was ‘not persuaded that such public interest as exists can only be vindicated if communications with the Authority have a general immunity from forensic investigation’.[56]
[55]Warumungu Land Claim, 129 (Toohey J).
[56]Warumungu Land Claim, 130 (Toohey J).
While I might share the opinion of Woodward J that it is desirable to protect secret and sacred Aboriginal information and beliefs from unwanted disclosure, Warumungu Land Claim is simply not authority for the proposition that, by its very nature, this kind of information attracts public interest immunity. It could only do so if it was information necessary for the performance of government functions that was received by the government in confidence, where disclosure of the information would be likely to impair the future performance of those functions; for example, by inhibiting informants from providing similar information or exposing them to some detriment.
I have not overlooked the Council’s submission that, in accordance with s 32 of the Charter, s 130 of the Evidence Act should be interpreted compatibly with s 19(2) of the Charter. This submission, did not address how ‘matters of state’ in s 130 might be construed to encompass information of ‘cultural and personal significance to Aboriginal Victorians’. I do not see how those words can carry that meaning. The effect of s 32 of the Charter is that, where a statutory provision has more than one possible meaning, the meaning to be preferred is that which, consistent with the purpose of the provision, is most compatible with human rights.[57] It is not a warrant to disregard the text or to read words into a provision.
[57]Slaveski v Smith (2012) 34 VR 206, [45]; Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [85].
For completeness, I do not consider that the whole Statement could be characterised as ‘secret or sacred Aboriginal information and beliefs’ of the kind sought in the Warumungu Land Claim. Some of the information in the Statement – in particular the description of the proposed agreement area in item A5 – is plainly neither secret or sacred, and was always intended to be made public. The evidence relied on by the Council did not identify any specific parts of the Statement that contain information about Taungurung culture and traditions that is inherently secret or sacred.
Claimed confidentiality
Although I do not accept that public interest immunity attaches to the Statement merely because it contains information about Aboriginal culture and traditions, I accept that it might attach to the Statement if:
(a) the information in the Statement was necessary for the performance of the functions of government ‘at the highest level and for the benefit of the public in general’;[58] and
(b) the Statement was provided and received in confidence; and
(c) disclosure of the Statement would be likely to impair the future performance of those governmental functions because it would inhibit other traditional owner groups from submitting Part A threshold statements.
[58]Seal Rocks, [17].
I readily accept that the information that is required by the Guidelines to be included in a threshold statement is necessary for the performance of a high level government function – namely, advancing reconciliation and promoting good relations between the State and traditional owners, and recognising traditional owner groups based on their traditional and cultural associations to land in Victoria.[59] The agreements between the State and traditional owner groups that are contemplated by the Settlement Act are of an entirely different order to, for example, a commercial agreement that might be negotiated by the State. The unique status of Aboriginal peoples as descendants of Australia’s first peoples is recognised in the Constitution Act 1975 (Vic), and the negotiation of agreements that recognise traditional owner rights is a significant responsibility of the Victorian Government.
[59]Settlement Act, s 1.
However, I am not persuaded that the Statement was provided to and received by the State in confidence, or that disclosure would be likely to inhibit other traditional owner groups from submitting their own Part A threshold statements.
Mr Mathews deposed that the Statement was provided ‘expressly on a confidential and without prejudice basis’.[60] He went on to say that, if the Statement were disclosed without the express approval of the full Taungurung group:[61]
It could fairly be anticipated that the confidence of Aboriginal persons generally and those who provide sensitive cultural and anthropological information in the legal process of [the Settlement] Act will be severely eroded. This would compromise the very scheme of that Act. This is because the premise for negotiation with the State under that Act is that it can and will guarantee confidentiality of all information provided to it. Once material given in confidence to the State in this process is provided to persons outside those acting for the State, trust in the State and the process would be significantly undermined.
[60]Affidavit of Rainer Mathews (not affirmed) dated 9 April 2020, [12].
[61]Ibid, [16].
Mr Mathews was not, however, personally involved in the preparation and submission of the Statement, and he did not support his assertion of absolute confidentiality by reference to any correspondence between NTSV and the Native Title Unit. This gap in the evidence was filled by a second affidavit prepared by Mr Cowie, which exhibited the relevant correspondence. A more nuanced picture appears from the contemporaneous evidence.
To begin with, the Guidelines provide no guarantee of confidentiality for a threshold statement submitted by a traditional owner group. To the contrary, they draw attention to the application of the Freedom of Information Act 1982 (Vic) to threshold statements. The Guidelines state:[62]
[62]Guidelines, 12.
Confidentiality
A traditional owner group may request that parts of their threshold statement be treated as confidential, but will need to provide grounds for such treatment. The grounds will be considered by the Native Title Unit, and confidentiality undertakings may be entered into if deemed appropriate.
The threshold statements will also be subject to:
•The Information Privacy Act 2000 (Vic) which regulates the collection, use and disclosure of ‘personal information’; and
•The Freedom of Information Act 1982 (Vic) which regulates disclosure of documents and records of communication, largely in terms of the public interest in disclosure or non-disclosure.
In addition, the Guidelines contemplate that a threshold statement, or an agreed public statement, will be published as part of the notification process.[63] It is therefore something of an overstatement to assert, as Mr Mathews did, that the premise for negotiation under the Settlement Act is that the State can and will guarantee confidentiality of all information provided to it.
[63]Guidelines, 67.
Next, in the letter of intent to negotiate that accompanied the Statement submitted to the Native Title Unit in September 2013, the Taungurung traditional owner group put their request that the Statement be kept confidential as follows:[64]
The Threshold Statement (Part A), information contained within the Threshold Statement (Part A) and any supporting or ancillary information is provided to the State on a without prejudice and confidential basis for the purpose of negotiations under the Traditional Owner Settlement Act only and not for any other purpose. This includes the condition that no part of the Threshold Statement (Part A) is to be made available to the general public until agreement has been reached with NTSV and the Taungurung people on the final form and content of the public version of the Threshold Statement (Part A).
The basis for the confidentiality condition is that the Threshold Statement (Part A) contains information that was collected by NTSV (and its predecessor, Mirimbiak Nations Aboriginal Corporation) that may constitute confidential information under the Privacy Act 1988 (Cth) (which is likely to include the significant number of quotes used throughout the document, the skeletal genealogies, and possibly other information), and for which NTSV does not have the requisite consent to publish. NTSV as an organisation is required to comply with the National Privacy Principles. Under the terms of the funding agreement NTSV has with the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs, NTSV is also required to comply with the Information Privacy Principles as if it were an agency of the Commonwealth.
The concern at that time appears to have been the requirement for NTSV to meet its obligations under the Privacy Act 1988 (Cth) (Commonwealth Privacy Act), in respect of personal information contained in the Statement. There was no suggestion that particular information in the Statement about Taungurung culture and traditions was secret or culturally sensitive, or that negotiations could not take place without a guarantee of confidentiality.
[64]Second affidavit of Dean Cowie (not affirmed) dated 17 April 2020, Exhibit DC-3.
It does not appear that the Native Title Unit responded directly to this claim for confidentiality. In September and October 2013, there was an exchange of emails between NTSV and the Native Title Unit about the content of the agreed public statement. NTSV gave its preliminary view that there was ‘no personal information in the threshold statement other than the quotes and skeletal genealogies (as previously indicated)’.[65] It expected to obtain consents to publication of the skeletal genealogies, and sought an early indication of whether it would be acceptable to remove the quotes from the public document.
[65]Second affidavit of Dean Cowie (not affirmed) dated 17 April 2020, Exhibit DC-3.
The Native Title Unit did not agree to quotes being removed from the public document. It responded:
Regarding the quotes, our preference remains that they are not removed from the public document. They are an important way of giving a traditional owner voice to the statement and they provide substance to the sections they sit within, particularly the statement of association and the section on agreements with neighbours. The process of seeking a settlement under the Traditional Owner Settlement Act is one where traditional owner groups come forward to assert their association to country and seek public recognition of their rights, so this is a very public act.
NTSV maintained its conservative approach to the inclusion of quotes, because of its obligations under the Privacy Act 1988 (Cth) in relation to personal information. While no further correspondence on this question was exhibited, it appears that the NTSV’s conservative approach prevailed. The agreed public summary of the Statement did not include quotes or skeletal genealogies.
The Native Title Unit conducted an evaluation of the Statement, which included the following consideration of the claim that it be kept confidential:[66]
[66]Second affidavit of Dean Cowie (not affirmed) dated 17 April 2020, [14].
Confidentiality of the threshold statement
The state notes the request in the letter that the Part A threshold statement, including information contained in it and any supporting or ancillary information that might be provided, is provided on a ‘without prejudice and confidential basis’.
Further, the letter states: ‘this includes the condition that no part of the Threshold Statement (Part A) is to be made available to the general public until agreement has been reached with NTSV and the Taungurung people on the final form and content of the public version of the Threshold Statement (Part A).’
The Threshold Guidelines state on page 12:
All threshold material received by the state and the content of all threshold negotiations conducted with the state, will be taken to be ‘without prejudice’ with respect to any concurrent or future proceedings regarding applications for determinations of native title or for compensation.
Further, on page 12 the Threshold Guidelines state that a ‘traditional owner group may request that parts of their threshold statement be treated as confidential, but will need to provide grounds for such treatment.’
The letter of intent proposes the basis for the requested confidentiality condition with respect to the whole Part A threshold statement. It refers to information that may have been collected by NTSV and its predecessor organisation, Mirimbiak Nations Aboriginal Corporation, that ‘may constitute confidential information under the Privacy Act 1988 (Cth) … and for which the NTSV does not have the requisite consent to publish.’
The ‘requisite consent’ is presumably the consent of traditional owner informants who are quoted in the Part A threshold statement (but who are in any case not named in the statement), or from traditional owners who are the subject of the genealogies contained in the Part A threshold statement.
As set out on page 12 of the Threshold Guidelines, the state considers the Part A threshold statement is subject to the Information Privacy Act 2000 (Vic) and the Freedom of Information Act 1982 (Vic).
In order for threshold notification to proceed, the state and the Taungurung people need to reach agreement on the content of a public statement. Appendix A of the Threshold Guidelines sets out the minimum content of the public statement to be used during the threshold notification. While legal requirements in terms of privacy and freedom of information must be met, the state also notes the collective nature of traditional owner rights recognised under the Traditional Owner Settlement Act and the need for transparency regarding the basis of the state’s decision to enter into a settlement agreement.
It is not clear whether this evaluation was provided to the Taungurung traditional owner group or NTSV. Whether or not that occurred, the position of the Native Title Unit was that, while legal obligations in relation to privacy had to be observed, the statement was essentially a public act of the Taungurung asserting collectively held rights of traditional ownership. The Native Title Unit appears to have been conscious throughout that it could not guarantee confidentiality, given the application of the Freedom of Information Act 1982 (Vic) and the need for transparency of any decision to enter into a settlement agreement. It did not enter into a confidentiality undertaking on behalf of the State.
In summary, the Taungurung traditional owner group asked that information contained in the Statement be kept confidential only to the extent necessary to meet NTSV’s obligations under the Commonwealth Privacy Act in respect of personal information. The State, through the Native Title Unit, accommodated that request during the notification process and the negotiation of the RSA. It did not, however, guarantee confidentiality of all of the information in the Statement. Nor should it have, when the Commonwealth Privacy Act permits use or disclosure of personal information that is required by or under another Australian law, or a court or tribunal order.[67]
[67]Privacy Act 1988 (Cth), Sch 1 – Australian Privacy Principles, cll 6.1 and 6.2(b).
Would disclosure harm the public interest?
The public interest that might attract the immunity to the Statement is the public interest in the future performance of the high level governmental function of advancing reconciliation and recognising traditional owner rights, described more fully at [63] above. I do not consider that disclosure of the Statement would harm that public interest, because I am not satisfied that it would be likely to inhibit other traditional owner groups from submitting their own Part A threshold statements. There are three reasons for that conclusion.
First, the Taungurung submitted the Statement in this case without any prior guarantee of confidentiality, and then successfully negotiated the RSA in circumstances where the State had not undertaken to keep the Statement confidential.
Second, most of the information that must be included in a Part A threshold statement is not inherently secret or sensitive. I agree with the Native Title Unit’s characterisation of the process of seeking an agreement under the Settlement Act as ‘one where traditional owner groups come forward to assert their association to country and seek public recognition of their rights,’ which is ‘a very public act’.[68]
[68]Email dated 2 October 2013 from Native Title Unit to NTSV, included in exhibit DC-5 to the second affidavit of Dean Cowie (not affirmed) dated 17 April 2020.
At the same time, I accept that a threshold statement is likely to contain information that is deeply personal to some traditional owners, or is culturally sensitive, and which should not be made public. That is not sufficient to cloak the entire document with public interest immunity, although it is (as I discuss below) a reason to consider imposing an appropriate confidentiality regime.
Third, the information that the State requires be included in a Part A threshold statement is, in large part, information that would otherwise have to be provided in an application to the Federal Court for a determination of native title.[69] Confidentiality is not a feature of that forum, although it may be ordered.[70]
[69]Native Title Act, ss 61 and 62; Native Title (Federal Court) Regulations 1998 (Cth), Form 1.
[70]Federal Court Rules 2011 (Cth), rr 34.120, 34.123, 34.124.
In that context, it is important to bear in mind that the Settlement Act is beneficial legislation that provides an alternative mechanism for the resolution of native title claims under the Native Title Act, through the making of agreements with traditional owners that include rights equivalent to native title. As the then Premier of Victoria outlined in the second reading speech for the Settlement Act, the recognition of native title by the Native Title Act has significant shortcomings for Aboriginal Victorians.[71] One of those is the requirement for claimants to establish that they still hold a customary title that has survived nearly 200 years of European colonisation, by proving that they have maintained a continuous connection with their country and form a society with a normative system of law and custom significantly unchanged over that time. In Victoria, this test is almost impossible for claimants to meet.[72]
[71]Victoria, Parliamentary Debates, Legislative Assembly, 28 July 2010, 2750-2751 (Mr Brumby, Premier).
[72]See e.g. Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
The Settlement Act enables recognition of the connection that traditional owner groups have with land in Victoria, while not requiring them to satisfy the stringent test that applies under the Native Title Act. Submission of a Part A threshold statement is a necessary step in obtaining that recognition. I do not consider that concerns about confidentiality are likely to deter other traditional owner groups from taking that step, when the only available alternative is an application to the Federal Court under the Native Title Act.
For these reasons, I conclude that the Statement is not subject to public interest immunity, and must be produced by the Attorney-General.
Balancing public interests
Even if I had been satisfied that public interest immunity attaches to the Statement, I would nevertheless have determined that the public interest in disclosure for the purposes of this proceeding outweighs the public interest in maintaining confidentiality. In that regard, I give weight to the fact that the Attorney-General does not assert that production of the Statement would injure the operation of government in Victoria. Further, as explained above, the Statement is centrally relevant to the resolution of the plaintiffs’ claims in this proceeding. Its production is, in my view, necessary for the fair hearing of their case, and I consider that the administration of justice would be impaired if it were not disclosed. The risk of harm as a result of disclosure can be mitigated by an appropriate confidentiality regime.
It is apparent from the affidavit of Mr Mathews that the principal concern of the Taungurung traditional owner group is that information in the Statement may be misused by the plaintiffs and other people associated with them, to publicly harass and humiliate members of the Taungurung community. I am satisfied that there is a real basis for these concerns, in light of the insulting content of the Facebook posts exhibited to Mr Mathews affidavit. Some of them, not authored by any of the plaintiffs, question the ancestry of named members of the Taungurung community, and refer to them as ‘new skins’ or ‘cultureless new skins’. Other strong and, in some places, offensive language is used.
In light of that evidence, I consider that a confidentiality regime is necessary, over and above the implied obligation not to use the Statement for purposes other than this litigation.[73]
[73]See e.g. Hearne v Street (2008) 235 CLR 125, [105]–[108].
During the hearing on 14 April 2020, I asked the Council to submit the confidentiality order it would seek, were I to order production of the Statement. I also asked the plaintiffs to proffer a confidentiality undertaking that they considered appropriate. Both the Council’s proposed orders and the plaintiffs’ proposed undertakings limit disclosure to the plaintiffs, their lawyers and the Court, require the Statement to be used only for the purposes of the proceeding, and provide for the document to be returned or destroyed at the conclusion of the proceeding.
The main point of difference between the two is the Council’s proposal that the plaintiffs and their lawyers are limited to working with one copy of the document between them. I do not consider that the Council has demonstrated a need for such a tight restriction. In my view it would be unworkable, particularly in the current environment where, due to the COVID-19 pandemic, the plaintiffs are required to stay at home and cannot be expected to meet with their lawyers in person in order to read the document and provide instructions about it.[74] I do, however, accept that there should be some restriction on copying the document.
[74]This is a view that I reached independently. A submission to similar effect was made in a letter sent by the plaintiffs’ solicitors to my chambers on 20 April 2020. The submissions in that letter were made without leave, after I had reserved my decision. I have not had regard to them.
In addition, the Council’s proposed orders identify certain parts of the Statement in respect of which additional confidentiality orders are sought. One of them is a suppression order, and another is to the effect that oral submissions that refer to those parts of the Statement are to be made in a closed court. Any such order could only be made in accordance with the Open Courts Act 2013 (Vic), after notice has been given in accordance with s 10, and where one or more of the grounds in ss 18(1) or 30(2) exist. At present, none of those requirements has been met. I will of course consider any application the Council may make for orders under the Open Courts Act. In the meantime, I will make an order under r 28.05(2)(a) of the Rules that, until the trial of the proceeding, affidavits and written submissions filed in the proceeding may only be inspected by the parties and their legal advisers, unless otherwise ordered.
The plaintiffs’ proposed undertakings also included provision for the Statement to be provided to an expert retained by them in the proceeding who has signed an undertaking in the form proposed. I have not included that in the undertaking that I will require from the plaintiffs, given that the proceeding is listed for trial in mid-June, and the plaintiffs have sought no directions in relation to expert evidence.[75]
[75]Civil Procedure Act 2010 (Vic), s 65G.
Disposition
I will make the following orders:
(a) By 8 May 2020, the first defendant is required to produce to the Court a copy of the Part A Threshold Statement dated 13 September 2013, in answer to the plaintiffs’ notice to produce dated 15 August 2019.
(b) The solicitors for the plaintiffs have leave to inspect and make a copy of the Statement.
(c) The solicitors for the plaintiffs may provide one copy of the Statement to each of the following persons (and to no other persons):
(i) any counsel retained on behalf of the plaintiffs in this proceeding; and
(ii) any of the plaintiffs who files with the Court and serves on the second defendant a signed undertaking in the form attached to this order.
(d) Within 21 days of the finalisation of this proceeding, including any appeal, all copies of the Statement held by the plaintiffs and their legal representatives are to be deleted, destroyed or returned to the first defendant.
(e) Pursuant to r 28.05(2)(a) of the Rules, until the trial of the proceeding, affidavits and written submissions filed in the proceeding may only be inspected by the parties and their legal advisers, unless otherwise ordered.
The undertaking to be given by each of the plaintiffs is as follows:
I, ................................................ undertake to the Court and to the second defendant in Supreme Court of Victoria proceeding S ECI 2019 02090 (‘the proceeding’) in respect of the document entitled ‘Threshold Statement (Part A)’ dated 13 September 2013 and produced to the Court and in respect of which the Court has permitted inspection and copying in accordance with the orders made by the Honourable Justice Richards on 1 May 2020 (‘the confidential document’) that:
1. I will not use the confidential document, or any part of it, or any information contained in it other than for the purposes of the proceeding.
2. Subject to paragraph 4 below, I will not disclose, discuss or enable access to the confidential document or any part of it or any information contained in it, either directly or indirectly to any person other than the other plaintiffs and the plaintiffs’ lawyers.
3. If the copy of the document provided to me by my solicitors is in electronic form, I will print only one copy of it. Otherwise, I will not make any copy of the document.
4. I will make all reasonable efforts to store the confidential document and any documents or records which I make arising from my access to the confidential document in such a way that persons other than those entitled to access them cannot obtain access to it (or them). Without in any way limiting the generality of this undertaking, the reference to documents, records or copies includes records of information stored electronically.
5. The confidential document may be disclosed by me only to:
a.judicial officers and staff of the Supreme Court of Victoria; and
b.any solicitor who is a member of or employed by Holding Redlich, solicitors for the plaintiffs, and any counsel retained on behalf of the plaintiffs in the proceeding.
6. Within 21 days of the finalisation of the proceeding, including any appeal, I will ensure that my copy of the confidential document and any document created by me or given to me recording or containing information contained in the confidential document is deleted, destroyed, or returned to my solicitors.
My inclination is to reserve the costs of the hearing on 14 April 2020. Any party who seeks a different order as to costs may, within 7 days, file and serve a brief written submission setting out the order sought, and the reasons why it should be made.
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