FEDERAL COURT OF AUSTRALIA
Murray Lower Darling Rivers Indigenous Nations v Commonwealth (No 2) [2025] FCA 1037
ORDERS
NSD 1201 of 2023 BETWEEN: MURRAY LOWER DARLING RIVERS INDIGENOUS NATIONS
Applicant
AND: COMMONWEALTH OF AUSTRALIA
First Respondent
MINISTER FOR THE ENVIRONMENT AND WATER (CTH)
Second Respondent
MURRAY-DARLING BASIN AUTHORITY (and others named in the…
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- Case
- [2025] FCA 1037
- Decision Date
CaseChat Overview and Summary
The Court, in examining the application, considered the substantial legal precedent that the onus to persuade the Court to make a suppression order is a heavy one. It is necessary to demonstrate that the order is indispensable to prevent prejudice, not merely to address a potential prejudice. The Court highlighted that mere embarrassment or annoyance is not sufficient grounds for a suppression order, and that the order must be essential to prevent prejudice to the administration of justice. The Court found that, given the nature of the information and the circumstances of the case, the suppression order was not necessary to prevent prejudice. The Court observed that much of the evidence the claimants sought to protect had already been publicly discussed in open court, diminishing the utility of the suppression order. Consequently, the application was dismissed.
The Court also issued specific orders regarding the confidentiality of certain documents. These orders, made pursuant to the Federal Court Rules 2011, declared certain documents as confidential on the ground of protecting the cultural knowledge of the First Nations. These documents included the Nation Reports, an affidavit, and various annexures, with certain redactions to ensure that the necessary information was not unduly suppressed. Any person showing sufficient interest was granted the liberty to apply to the Court to vary these orders on reasonable notice to the applicant.
Orders
Orders of the court
[Orders 1-3 are included in the substantive decision in Murray Lower Darling Rivers Indigenous Nations v Commonwealth [2025] FCA 1029]
4. Pursuant to r 2.32(3) of the Federal Court Rules 2011 (Cth) on the ground referred to in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), it is ordered that the following documents are confidential:
(a) The Nation Reports comprising Attachments A to EE of Schedule C of the NSW Murray-Darling Basin Fractured Rock Water Resource Plan at Court Book Vol 3, tabs 1-25;
(b) The affidavit of Nadja Zimmermann affirmed 8 February 2025, unless the extracts from the Nation Reports quoted in paragraphs [26] and [28] are redacted;
(c) The submissions of the Commonwealth respondents filed on 20 December 2024, unless paragraph [33] is redacted;
(d) Annexure 1 to the amended interlocutory application filed on 11 April 2025, unless the words immediately after “Page 2660” to the end of the sentence at page 39, item 418 are redacted; and
(e) Amended Annexure 1 to the further amended interlocutory application filed on 3 June 2025, unless the words immediately after “Page 2660” up to “The 7 words ...” at page 83, item 418 are redacted.
5. Any person showing sufficient interest has liberty to apply on reasonable notice to the applicant to vary order 4.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Consequently, the onus of persuading the Court to make a suppression order has been described as “a very heavy one”: Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; 88 FCR 438 at [16] per Madgwick J. As Edelman J stated in Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8], the order “must be necessary to prevent prejudice to the administration of justice, not merely that it is desirable to address a potential prejudice to the administration of justice” (emphasis in original). To this end, “[m]ere embarrassment or annoyance will not suffice” (Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) [2013] FCA 533 at [7] per Perram J), nor “inconvenience, annoyance or unreasonable or groundless fears” (Australian Competition and Consumer Commission v Cascade Coal Pty Ltd [2015] FCA 607; 331 ALR 68 at [30] per Foster J).Consideration On the protection of cultural knowledge from disclosure, Banjima People v Western Australia (No 2) [2013] FCA 868; 305 ALR 1 in the native title context is instructive. Here, a suppression order was sought over certain anthropological material filed on behalf of the native title claimants. That material included what claim group members told an expert about “families, kinship, traditional boundaries and places, aspects of the Wardirba [custom], exercise of rights in country, dangerous places, religious beliefs and practices, aspects of Law business, apical ancestors and the use of some resources” (at [1986]). There was evidence to indicate that the Banjima people did not like to reveal “cultural or customary information”, with “far reaching social and spiritual consequences” for improper transmission (at [1999]-[2000]). Justice Barker observed (at [2032]):In the circumstances of parties who are claimants in a native title determination proceeding, and who are, by the law which governs proof of native title, obliged to reveal customary knowledge in order to establish that they are members of a vital society which remains connected to its traditional country by its traditional laws and customs, there is every possibility that what is customarily secret to, or held confidentially by, certain elders (with the respect and understanding of other members of that society) will need to be revealed to the court and other parties to the proceeding. There may be considered a public interest in continuing to protect such information nonetheless, as it is that very information that gives life and meaning to the society for whose advantage the Parliament has enacted the NTA. To violate the confidentiality of such information, or to render useless the customary processes by which such information or knowledge is held and controlled, would be calculated to undo the society and so the purpose of the proceeding to which it relates. His Honour ultimately declined to make the order sought as it was not considered necessary to prevent prejudice to the administration of justice (at [2040]-[2041]). Where there had been “public discussion in open court of much of the evidence the claimants now seek to protect”, there was little utility in the order being made (at [2042]). See also Booth (on behalf of the Gunaikurnai Native Title Claim Group) v Victoria [2022] FCA 1395 at [41]-[43] per Murphy J.