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Northern Territory v Griffiths [No 2]

Northern Territory v Griffiths [No 2]

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HIGH COURT OF AUSTRALIA
NETTLE J
D1/2018
NORTHERN TERRITORY OF AUSTRALIA   APPELLANT
AND
MR A. GRIFFITHS (DECEASED) AND LORRAINE
JONES ON BEHALF OF THE NGALIWURRU AND
NUNGALI PEOPLES & ANOR  RESPONDENTS
D2/2018
COMMONWEALTH OF AUSTRALIA   APPELLANT
AND
MR A. GRIFFITHS (DECEASED) AND LORRAINE
JONES ON BEHALF OF THE NGALIWURRU AND
NUNGALI PEOPLES & ANOR  RESPONDENTS
D3/2018
MR A. GRIFFITHS (DECEASED) AND LORRAINE
JONES ON BEHALF OF THE NGALIWURRU AND
NUNGALI PEOPLES  APPELLANT
AND
NORTHERN TERRITORY OF AUSTRALIA &
ANOR  RESPONDENTS
Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [No 2]
Commonwealth of Australia v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [No 2]
Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory [No 2]
[2019] HCA 19
19 June 2019
D1/2018, D2/2018 & D3/2018
ORDER
1.Pursuant to s 77RE(1)(b)(i) and s 77RG(4) of the Judiciary Act 1903 (Cth), and on the ground in s 77RF(1)(a) that the orders are necessary to prevent prejudice to the proper administration of justice, publication and disclosure of the material contained in the volume titled "Commonwealth's Book of Further Materials Volume Three (Gender Restricted) (Pages 608-662)" (the gender restricted volume), copies of which were filed on 6 April 2018 in a sealed bag, be restricted with effect on and from 9 August 2019 in the following manner:
(a)the gender restricted volume and any copies shall be kept separate and sealed in an envelope or bag marked "Evidence Restricted by Orders of the Court made on 30 May 2018 in Appeal Proceedings D1 of 2018, D2 of 2018 and D3 of 2018";
(b)any copy of the gender restricted volume being kept in the office of Registry is not to be available for inspection without an order of a Justice of the Court, any such order to be made after giving written notice to the parties in Appeal Proceedings D1 of 2018, D2 of 2018 and D3 of 2018;
(c)the gender restricted volume may be accessed by, and its contents disclosed to:
(i)a Justice of the Court hearing any application in relation to access to the gender restricted volume, including the application for these orders and any application mentioned in Order 1(b) and Order 2;
(ii)any Associate or other Court staff as directed by a Justice mentioned at (i);

(iii)any male counsel or legal representative of any party or intervener in the appeals in proceedings D1 of 2018, D2 of 2018 and D3 of 2018, or of any applicant or other party to an application mentioned in Order 1(b) and 3;

(d)any male counsel or legal representative mentioned in Order 1(c)(iii) may disclose the contents of the gender restricted volume to any male party or male officer of a party, other male counsel or legal practitioner, or male expert anthropological expert witness engaged by a party, for the purpose of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] HCA 19
Decision Date: 19 June 2019

CaseChat Overview and Summary

In the matter of *Northern Territory v Griffiths [No 2]*, Nettle J of the High Court of Australia considered an application for suppression and non-publication orders concerning expert evidence admitted in native title proceedings. The dispute arose from compensation claims where gender-restricted evidence from senior males of the Ngaliwurru and Nungali Peoples had been admitted. The applicant sought to restrict the publication and disclosure of this specific evidence.

The central legal issue before the Court was whether suppression or non-publication orders were necessary to prevent prejudice to the proper administration of justice, as contemplated by the *Judiciary Act 1903* (Cth). This involved determining the scope of the Court's power to make such orders and the specific grounds upon which they could be justified, particularly in relation to sensitive or culturally restricted information.

Nettle J reasoned that the admission of gender-restricted knowledge in legal proceedings could, in certain circumstances, necessitate protective orders to ensure the administration of justice was not prejudiced. The Court applied the principles of s 77RE(1)(b)(i) and s 77RG(4) of the *Judiciary Act 1903* (Cth), finding that the orders were necessary on the ground specified in s 77RF(1)(a) to prevent prejudice to the proper administration of justice. The Court's reasoning led to specific orders restricting the publication and disclosure of the gender-restricted volume of evidence, with access limited to specific individuals, including male counsel and legal representatives, and male parties or officers of parties, for defined purposes and for a period of 10 years. Liberty was reserved for parties to apply for variation of these orders.

Orders

Orders of the court

1. Pursuant to s 77RE(1)(b)(i) and s 77RG(4) of the Judiciary Act 1903 (Cth), and on the ground in s 77RF(1)(a) that the orders are necessary to prevent prejudice to the proper administration of justice, publication and disclosure of the material contained in the volume titled "Commonwealth's Book of Further Materials Volume Three (Gender Restricted) (Pages 608-662)" (the gender restricted volume), copies of which were filed on 6 April 2018 in a sealed bag, be restricted with effect on and from 9 August 2019 in the following manner:

(a) the gender restricted volume and any copies shall be kept separate and sealed in an envelope or bag marked "Evidence Restricted by Orders of the Court made on 30 May 2018 in Appeal Proceedings D1 of 2018, D2 of 2018 and D3 of 2018";

(b) any copy of the gender restricted volume being kept in the office of Registry is not to be available for inspection without an order of a Justice of the Court, any such order to be made after giving written notice to the parties in Appeal Proceedings D1 of 2018, D2 of 2018 and D3 of 2018;

(i) a Justice of the Court hearing any application in relation to access to the gender restricted volume, including the application for these orders and any application mentioned in Order 1(b) and Order 2;

(ii) any Associate or other Court staff as directed by a Justice mentioned at (i);

(iii) any male counsel or legal representative of any party or intervener in the appeals in proceedings D1 of 2018, D2 of 2018 and D3 of 2018, or of any applicant or other party to an application mentioned in Order 1(b) and 3;

(d) any male counsel or legal representative mentioned in Order 1(c)(iii) may disclose the contents of the gender restricted volume to any male party or male officer of a party, other male counsel or legal practitioner, or male expert anthropological expert witness engaged by a party, for the purpose of any application mentioned in Order 1(b) and 3.

2. Subject to any further order, the period for which these orders will operate that is specified for the purposes of s 77RI of the Judiciary Act 1903 (Cth) is 10 years from 12 April 2019.

3. Liberty is reserved to any party or intervener to the appeal proceedings or any person listed in s 77RG(2) of the Judiciary Act 1903 (Cth) to apply by summons and supporting affidavit for an order varying Orders 1 and 2.

4. There be no order as to the costs of and incidental to the making of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NETTLE J

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Ratio Decidendi

Legal Principle Established

Established by: NETTLE J

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