The State of Western Australia v Minister for Aboriginal & Torres Strait Islander Affairs of the Commonwealth of Australia

[1994] FCA 732

JUDGMENT NO. ......,,, 7 3 ~ 9 ' t .

IN THE FEDERAL COURT	1
OF AUSTRALIA	1
WESTERN AUSTRALIA	) - N
DISTRICT REGISTRY	1
GENERAL DIVISION	1
B E T W E E N :	THE STATE OF WESTERN AUSTRAJJA

F~rst-named Applicant

Second-named Applicant

MINISTER FOR ABORIGINAL AFFAIRS O F THE STATE OF WESTERN AUSTRALIA

and

MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS O F THE COMMONWEALTH OF AUSTRALIA

Respondent

No. WAG 25.40 and 45 of 1994

Respondent

MALCOLM McDONALD DOUGLAS AND

VALERIE ANNE DOUGLAS

Appl~cants

14 OCT 1994

FEDEM CWRT OF and

AUSTRALIA

THE HON ROBERT TICKNER, MINI!TER

FOR ABORIGINAL AND TORRES
STRAlT ISLANDER AFFAIRS

No. WAG 55 OF 1994

M I N I m R FOR ABORIGINAL AND

TORRES STRAIT ISLANDER AFFAIRS

OF THE COMMONWEALTH O F

AUSlRALIA

Applicant

and

THE STATE OF WESTERN A U S I W U U

Flrst Respondent

MINISIT3 EOR LANDS OF THE S T A m

OF -RN AUSTRALIA

Second Respondent

MINISTER FOR ABORIGINAL AFFAIRS O F THE STATE O F WESTERN AUSlRALIA

Thrrd Respondent

CORAM:	CARR J.
PLA-	PERTH
DATE:	29 JULY 1994

MPORE RFASONS FOR JUDGMENT

This is a motion on behalf of the State of Western Australia, the Minister for

Lands of the State of Western Australia, and the Minlster for Aboriginal Affairs of the

State of Western Australia, seelung the immediate production for inspectron of a report

of Dr Patrick Sullivan dated March 1994, which I shall call the Sullivan Report, whlch the respondent, the Minister for Aboriginal and Torres Stralt Islander Affairs of the Commonwealth of Australia discovered in h ~ s 1st of documents llsted 17 June 1994, and

whch has been filed in these proceedings. The applrcants wrsh to have that document

available for inspection by their sol~c~tors, their counsel, and the consulting

anthropologist, and consulting hlstor~an, both of whom are male persons, and who are advlsing those solicitors, and also for inspection by the Attorney-General for the State of Western Australia, being the instructor who happens to be a woman. The applicants seek a preliminary order that the time for hearing of this application be abridged, which I shall take to be an application to abrldge the time between s e ~ c e of the notice of motion and supporting affidavits, and the hearing of this application. In view of the fact that the hearing of the substantive appl~cation is listed for 5 days commencing on Monday 8 August 1994, I shall make that first order.

The respondent's position is that he is prepared to release the Sullivan Report,

subject to women and uninitiated Aboriginal males not having access to certaln portions of the Sullivan Report, which I shall call the Restncted Material. This presents a problem for the applicants in the preparation and presentation of their case because MS

CA. Wheeler of counsel is to appear as counsel for them, and MS H.V.M. Cogan of the

Crown Solicrtor's office of the State of Western Australia, a solicitor, is engaged in the

conduct of this and several related applications.

Those pnnc~pal, or underly~ng applicat~ons, are for orders of review and

declaratory relief in respect of certain decisions made by the respondent, pursuant to

section 9 of the Aboriginal and T o m Strait Islander Heritage Protection Act (1984). Those decisions had the effect of preventing the development of extensions to a crocodile park

near Broome m Western Australia. The respondent's declslons were made in February, March, and April this year following two unsuccessful appllcat~ons by certaln members

of the Yawuru Peoples for interlocutory Injunctions to restraln the development of a

crocodile park.

The first application was made to this court but was transferred to the Supreme

Court of Western Australia in about September last year. I shall describe those

proceedings in the Federal Court as transferred to the Supreme Court as being the

Supreme Court Action. After the Supreme Court had refused to grant an interlocutory

injunction in the Supreme Court Action, but while that actlon was still pending before the Supreme Court, the Yawuru Peoples applied to this court for such an interlocutory injunction. After a hearing, that application was refused and the matter was remitted to the Supreme Court of Western Australia.

Immediately after that decision the respondent made the first of his declarations under the Commonwealth Act which I have just mentioned, following representations made to lum on behalf of the Yawuru Peoples. The respondent's objection to the Restricted Material being inspected by women and uninitiated Aborignal males is made

at the request of a Mr I ~ n g of the Kimberley Land Councll, and in turn on behalf of

certain members of the Yawuru Peoples. Two affidav~ts have been filed from members of the Yawuru Peoples in relation to the Restricted Material. Mr Matthew Gilbert's

affidavit of 26 July 1994 refers to the passages which constltute the Restncted Material,

and states:

"These passags concern men's busmess and should not be shown or told to women or unlnlttated Aborlglnal men. Th~s is the law and it 1s dangerous to break the law. If women have already seen or heard about thls business that IS

bad, but it must stop. The law 1s broken every tlme thls business 1s seen or
heard by them."

Mr Irving, who was given leave to intervene on behalf of the Kimberley Land Council, emphasised that part of thls affidav~t, namely that:

'The law is broken every time thts business a seen or heard by them."

The affidavit of Mr Frank Sebastian, chairman of the Yawuru Aboriginal

Corporation sworn on 26 July 1994 reads In part:

"I personally have knowledge of Yawuru traditional law and frequently asslst Matthew Gilben who carries the law for this country, when he needs help to understand -"

what he calls ''white fella law" I should resume my quote there -

%hen he needs help to understand white fella law. I can also say from my knowledge of our law that what Matthew Gilbert says in his afidavlt

is correct. The passages marked in Patrlck Sullivan's report concern
men's business and should not be shown to, or discussed mlh women,

to do so would break our law and would be dangerous."

There is also an affidavit from Mr D.A. Vachon a consultant anthropologist who

has some 17 years expenence working with, and studying Abonginal law, people and

culture. He has read the Restricted Mater~al and in summary states that nearly all the

passages relate to "male mitiation" and contaln information wh~ch	in Abongnal terms
would be considered men's business. Mr Vachon goes on to depose as follows:

"I know hornexperience that information such as that contatned in these marked passages is "dangerous" by whtch it is meant, among other things, that it is restncted to certain culturally specified context. I consider that mahng this information accessible to womenor uninitiated Abongnal men would be regarded by the men who made these statements and by initiated Abonginal men generally as culturally inappropriate and in breach of Aborigtnal law. I know from my expenence that revealing dangerous information in a culturally inappropriate way will result in severe punishment of those responstble. I have been pven many oral accounts hy initiated Aboriginal men of such cases, furthermore I personally know of one instance where such disclosure resulted in considerable and prolonged community disruption Should the information in the marked passages -"

whlch is a reference to the Restricted Mater~al -

"be made publ~cor accessible to women and uninrtrated Aboriginal men, 11 IS my opinion that rt would not only muse considerable anxiety for the men attnbuted to the statements. but could well result in community disruption.'

I pause here to observe that as was submitted by MS Wheeler, and as I will mention in a moment, despite the fact that the bulk of the Restricted Matenal has been disclosed to Ms Wheeler and MS Cogan some months ago, there 1s no ewdence before me of those

events coming about, which have been deposed to in Mr Vachon's affidavit and referred to in the two affidavits from Mr Sebastian and Mr Gllbert respectively. The respondent's

solicitor when certifying the accuracy of his list of documents stated that the Sulllvan Report among other documents was provided to the respondent on the condition that

it not be reproduced, and not be seen by women or uninitiated Aboriginal men. And

that access be limited to the Minister and those necessary to adwse him.

The applicant's posltlon broadly speaklng is twofold. Flrst they say that they reqwe access to the whole of the Sulllvan Report for the preparation and presentatlon of their case and that thls requires their counsel, MS Wheeler and their solic~tor, MS Cogan, to have access to the complete Sullivan Report. Secondly, they point out wa an	affidavit of Mr C.R. Humphry, the solicitor also engaged by the applicants m the	preparation and presentatlon of thelr case, and who has appeared variously as counsel
and junior counsel for the applicants in thls and related matters, that all but four passages in the Restricted Materlal comprlse extracts from affidavits and reports filed by
members of the Yawuru Peoples in the Supreme Court Actlon and the Federal Court proceedings which were transferred to the Supreme Court earher thls year, and to whlch
I have referred earlier.
As to the four other items, there is evldence that at least one, the article by Rolf and Ma rjorie Piddington in 1932, has been published in an anthropological journal known as "Oceanlaw [volume 2 number 31 which IS freely available. In those Supreme Court and Federal Court proceedings, MS Wheeler acted as counsel and MS Cogan as solicitor, and
there is evidence that they examlned the atfidavlts and reports pnor to and dunng various interlocutory proceedings. There is also substance in the submission that much of what is not sought to be restricted in the Sullivan Report is of a very similar nature to that which is sought to be restricted, and also which IS acknowledged as belng of a sensitive nature.
Mr Humphry in hls affidavit refers to the fact that Owen J m the Supreme Court proceedings made confidentiality orders in relat~on to various materials, including some
of the Restricted Materials, to the effect that those materials remained confidential to the parties to those proceedings, and that publicat~on be restncted to officers of the court and male anthropologists. The references to officers of the court would include MS Wheeler and MS Cogan, and m fact any other female lawyers who were also sobc~tors of
the Supreme Court of Western Australia.

Furthermore, on 4 March 1994 I made an order in s~milar terms restncting certaln

material sa~d to be sensitive for similar reasons to those outlined above. That order restricted those materials to legal pract~tioners acting for the parties, ~ncluding the mtervener, and any historians or anthropolog~sts asslstlng them. Mr and Mrs Douglas, who are parties to related proceedmgs, the Attorney General for the State of Western Australia, to the extent necessary tor the preparation of the transcript employees of

Auscript, Mr Chaney, and the Commonwealth Mlnlster for Aborlglnal Affa~rs.

It appears from the materials filed that as late as 27 June 1994 appropriate arrangements had been made between the solicitors for the applicants and the respondent respectively to limit distribution of the Restricted Material and other similar sensitwe material. An undertaking had been extended by the State that the contents of those documents would be treated in confidence, and access would be restricted to employees of the Crown Solicitor's office being officers of the court, as I have referred to earher. Mr Douglas, but not his wife, Mr and Mrs Douglas's counsel, and solicitors and male anthropologists consulting to those parties.

"As at 27 June 1994 Mr Imng of the IGmberley Land Council was" - and I am

quotmg from Mr Carey's affidavit, "generally favourably disposed to releasing the

documents in accordance with the State's undertaking." Although he rased, apparently,

the possibility of a wider undertaking being requ~red. There is evldence that prior to thls undertaking there had been contact at a very senlor level between the lawyers for the two

telephoned Mr Peter Panegyres, Crown Solicltor for the State of Western Australia, and	sets of parties. On 21 June 1994 Mr Dale Boucher, the Australian Government Solicitor,	discussed wth Mr Panegyres the problem of certaln documents not belng reproduced,
and not be~ng seen by women or unin~tlated Abor~glnal men.

That approach seems to have been well recelved by Mr Panegyres who told Mr

Boucher that officials wlthln his office understood the issues as they have to deal wth

them also m the course of canylng out the~r protess~onal dut~es. I mlght say that I regard

that contact and the response as belng particularly appropriate and constructive. By 4 July 1994 the situation had changed. Mr Irving of the K~mberley Land Council Informed

the respondent's solicltor that some parts of the Sullivan Report should not be released, and on 11 July 1994 sent to that solicitor by facsimile some 17 pages from the Sullivan Report with the relevant passages to be deleted or withheld Indicated in that facsimile.

I have had very little time in whlch to conslder this matter and it must be dealt with urgently. I propose to rely heavily on the Full Court decision in Aboriginal Sacred Sites Protectiorl Authority v. Maurice & Ors (1986) 65 ALR 247, and the cases referred to

in the reasons for judgment in that case. I appreciate that there are factual distinctions

between that case and the present matter. Wlthout dec~ding, I shall assume that public

interest Immunity extends to the materials in issue in thls matter. It then becomes

necessary to weigh the countervalling elements ot public interest, to which I have referred

above.

It is necessary for me to reconcile several competing interests. The first is the

public Interest m achieving justice between the parties to litigation including proper

preparation and presentation of each party's case. That IS, the public interest that a

court of justice in performing its functions should not be denied access to relevant evidence. Sometimes it is described as the public lnterest that the adm~nlstratlon of jusoce wll not be frustrated by the wlthholdlng of documents whlch must be produced

if justice is to be done. The second public Interest IS that, in certain circumstances, sources of Information wh~ch are important for the discharge of public functions mlght

dry up if that information,	or the sources of that information, are not glven adequate
protection.

That, as I see it, forms part of what n know as public Interest immunity, or public

interest privilege. There is also the questlon of confidentiality. It would seem that

confidentiality is not a separate head of priwlege from production of documents, but is

a relevant consideration where immunlty is claimed on the ground of public interest.

And for that proposition I refer to Sarzkey v. Whitlam (1982) 142 CLR page 1 at 43.

Then there is the interest of the Yawuru Peoples themselves in not having sensitive

information disclosed, and I have referred earlier to the affidawts in that regard.

There IS also the Important public Interest that in Australian soclety women should not be the subject of discrimination. By resisting the order sought by the applicants the respondent is in effect, in this matter at least, seeking to discriminate between female lawyers and male lawyers. The proposltlon was put to me that on occasion the orders

sought are the other way round, and in that case I would see that as reverse discrimination. But I regard the question of the r~ght of female lawyers to practice in this

area as being something that needs to be weighed in the balance, Jong w~th	the other
public interest matters to which I have just referred.

As part of that we~ghlng process, I have had regard to the extent to whlch the

above materlal has already been made available for lnspectlon by MS Wheeler and MS Cogan. I appreciate that further and continued production to women IS of concern to

the Yawuru Peoples and in the orders whlch l propose to make, I Intend to retlect the court's appreciation of those concerns. I take Into account also the late stage m the proceedings at whlch this problem has arisen.

Nevertheless, after readlng the Restricted Material and weighing up all of the above factors, I consider that the Interest of justice require at least one of MS Wheeler or MS Cogan to have access to the Restricted Matenal. As part of my weighing up

process, I have read the Restricted Matenal. In vlew of the evidence which was

previously adduced before me on a restricted bass and referred to above, when I came

to that task I had expected the Restricted Mater~al to be redolent with detailed

descriptions of initiation ceremonies and the like.

While the subject IS certainly touched upon, the revelations for whlch protection

is sought fell, in my opinion, far short of what I was expecting. By excluding one of MS

Wheeler or MS Cogan, there should be no real prejudice to the preparation and presentation of the applicant's case and, at the same tlme, I conslder that the interests

of the Yawuru Peoples are appropriately protected to the fullest extent possible in all the

circumstances.

In Mr Sebastian's affidavit he refers to what he descnbes as "whlte fella law". By

that reference, I have taken Mr Sebastian to be referring to the law of thls country other than Aboripnal law. I do not thlnk it 1s appropriate to descnbe that body of law as "white fella law". The truth of the matter IS that it IS Australian law for all Australians regardless of thelr colour.

After weighing the various confllctlng Interests referred to above, I consider that

the appropriate orders should be as follows:

1. Dr Patrick Sullivan's report dated March 1994 be produced by 10.30 am on

   Tuesday, 2 August 1994, for the inspection oE

(a)	counsel and solicitors engaged on behalf of the applicants m these proceedings save that only one of such persons shall be a female;
(b)	the consulting anthropologist and consulting historian (bemg male persons)

advising the appl~cant's solicitors.

1. The contents of the above document are to be treated in confidence and access

   is to be restncted to those persons mentioned above.

2. The applicants have liberty to apply in respect of access being granted to the

   above document to the Attorney-General for the state of Western Australia.

I propose to reserve the question of the costs of this motion to the hearlng whlch takes

place at the beginning of the week after next.

I certlfy that thls and the preceding twelve (12) pages are a true copy of the Reasons for

Judgment of Justice Carr. -

Associate:

/

Date:  12 October i994

No. WAG 25 of 1994 No. WAG 39 of 1994 No. WAG 53 of 1994

Counsel for the Appl~cants:	Mr C.P. Stevenson
Solicitors for the Applicants:	Mallesons Stephen Jaques
Counsel for the Respondent:	Mr E Willheim QC and wlth him Mr K J Martin
Solicitors for the Respondent:	Australian Government Solicitor
No. WAG 26 of 1994 No. WAG 40 of 1994 No. WAG 45 of 1994
Counsel for the Apphcants:	MS C.A. Wheeler
Solicitors for the Applicants:	Crown Solicltor for the State of Western Australia
Counsel for the Respondent:	Mr E Willhelm QC and w~th  him Mr K J Martin
Solic~tors	for the Respondent: Australian Government Solicltor

Counsel for the Applicants:  Mr E W~llhelm QC and with him Mr K J Martln

Solicltors for the Applicants:	Australian Government Solicitor
Counsel for the Respondent:	MS C.A. Wheeler
Solicitors for the Respondent:	Crown Sollc~tor  for the State of Western Australia

Date of Hear~ng: 29 July 1994 Date of Judgment: 29 July 1994