Ward, Ben v The State of Western Australia

[1997] FCA 1479

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6001 of 1995

BETWEEN:	BEN WARD & OTHERS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES Applicants
AND:	THE STATE OF WESTERN AUSTRALIA & OTHERS Respondents

JUDGE:	LEE J
DATE:	12 DECEMBER 1997
PLACE:	PERTH

REASONS FOR JUDGMENT

On 22 September 1997 I ordered that the distribution of, and access to, transcript of part of the evidence heard in this matter on that day be restricted. The evidence was heard at Middle Ski Beach, Kununurra as part of the first applicants’ case.

On 11 April 1997 I noted that occasions would arise in the conduct of this case when an order restricting publication of evidence would be appropriate and, accordingly, made orders that a party intending to seek restrictions in respect of evidence to be given in the proceeding was to give notice to other parties, not less than twenty-eight days before the date on which the evidence was to be heard, of the restrictions sought and the basis on which it would be contended that such an order should be made. Any party objecting to the restrictions sought was to file and serve a notice of objection within fourteen days of receipt of the notice of intention to seek such an order.

The orders I made on 11 April 1997 were appealed from, by leave, and on 8 July 1997 a Full Court amended the terms of the orders to make it clear that the occasions when such orders would be made would be those in the interests of the administration of justice. (See:  State of Westen Australia v Ward (1997) 145 ALR 512.)

Pursuant to the orders made on 11 April 1997 the first applicants, by notice dated 29 August 1997 informed other parties of their intention to adduce evidence on 22 September 1997 in respect of which orders restricting publication thereof would be sought. The notice informed the parties that it was intended that the evidence be given only in the presence of females and that the basis on which the restrictions would be sought was “that the evidence will concern matters going to Miriuwung and Gajerrong women’s Law, ritual and role in child-rearing practices that, under the traditional law of Miriuwung and Gajerrong women, are not discussed in the presence of men”.

No objection was taken to the first applicants giving less than the twenty-eight days notice ordered. No objection to the orders sought by the first applicants was filed by any respondent.

On 22 September 1997 all people, other than myself, present at the hearing conducted at Middle Ski Beach, including counsel and solicitors for the parties, and persons recording the Court proceedings, were female.

Before the evidence the subject of the restriction orders was adduced I received evidence from the proposed witness - one of the named first applicants - directed to the grounds on which such an order would be sought. I was informed that the evidence to be given would be in respect of the practise of women’s law and that it was part of the traditional and customary law of the first applicants that women could not talk to men about such matters and, therefore, men were not to read any record of the evidence to the given. An exception was made in respect of myself as the person constituting the Court hearing and determining the claim of the first applicants.

That evidence was received in the manner of “voir dire” and the witness was able to be cross-examined by counsel for any other party. The witness was not cross-examined.

I directed that the evidence proposed to be subject to restriction be received and that at the end of the evidence I would determine whether it was germane to the first applicants’ case and whether it was appropriate that the order be made as sought.

After the relevant evidence was completed no submissions were made by counsel in opposition to the proposed order and no evidence was adduced tending to show that any party would be prejudiced in the conduct of its case by the making of such an order.

Being satisfied that there was no reason to conclude that the integrity of the trial procedure would be impaired and that the requirement placed on the Court by s 82 of the Native Title Act 1993 (Cth) (“the Act”) to take account of the cultural and customary concerns of Aboriginal peoples would be observed thereby, I decided that it was appropriate to make the restriction orders sought by the first applicants.

On 9 December 1997 senior counsel for the first respondent made application to the Court for an order that the orders made on 22 September 1997 be set aside on the ground that the evidence led in the “voir dire” did not reveal any apprehension of sanction or punishment under the traditional and customary law of which the witness had spoken if the evidence of the witness and the practise of women’s law was disclosed to males. No other ground for discharge of the order was relied upon and no variation of the order was sought.

The submission of counsel must be either that the order made was beyond power or that I should exercise anew my discretion in respect of it. If it is the former, the order it is plainly within power and no ground of invalidity has been shown.

If it is the latter then no new material has been placed before me. The absence of any evidence of belief as to liability to punishment was part of the material already considered by me.

Evidence of a belief that a traditional and customary law exists and prevents the disclosure of matters between genders, may go on to include evidence of a belief that non-observance of the law may bring liability to punishment under that law. Such additional evidence may strengthen the case of a party applying for orders restricting the publication of evidence which involves such a disclosure but it does not follow that the absence of that evidence makes such an order inappropriate.

The stipulation in s 82 of the Act that the Court, in conducting this proceeding, must take account of the cultural and customary concerns of Aboriginal peoples cannot be so constrained.

A claim by Aboriginal people of the existence of, and adherence to, traditional laws and customs is itself a cultural and customary concern of which account is to be taken. Of course, any procedural order made after taking account of cultural and customary concerns will not require the Court to make findings as to the existence of such laws and customs or as to the content thereof, both elements being ultimate issues in the proceeding. When determining if an order restricting dissemination of evidence should be made the Court will consider whether there is some evidence to support the claim to the existence of traditional laws and customs of the Aboriginal applicants for such an order and whether failure to make the order sought would discount or disregard a cultural or customary concern of those people. The Court will then look at matters such as the manner in which the trial has been conducted, whether there is any claim that the prejudice will be suffered by reason of such an order, and whether there is any evidence to support that claim before determining whether it will be in the interests of the due administration of justice to make the orders sought.

That course was followed in this case and no cause has been shown to discharge the order made on 22 September 1997.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee

Associate:

Dated:            

Counsel for the First Applicants:	M L Barker QC
A M Sheehan
Solicitor for the First Applicants:	Aboriginal Legal Service of Western Australia (Inc)
Counsel for the First Respondent:	C J Pullin QC K M Pettit
Solicitor for the First Respondent:	Crown Solicitor’s Office
Date of Hearing:	12 December 1997
Date of Judgment:	12 December 1997