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…

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.

Continue reading Ward, Ben v The State of Western Australia

Details

AGLC: Ward, Ben v The State of Western Australia [1997] FCA 1479
Case: [1997] FCA 1479
Decision Date: 12 DECEMBER 1997

CaseChat Overview and Summary

In the case of Ben Ward & Others on behalf of the Miriuwung Gajerrong People v The State of Western Australia, the Federal Court of Australia considered a dispute over the restrictions on the dissemination of sensitive cultural information related to women's law and practices of the Miriuwung and Gajerrong people. The applicants sought to limit the publication and distribution of certain evidence to ensure it was only accessible to females, citing traditional laws that prohibit men from discussing these matters with women. The respondents, the State of Western Australia and others, did not object to the restrictions proposed by the applicants.

The central legal issue was whether the court had the authority to impose restrictions on the dissemination of evidence based on the cultural and customary concerns of Aboriginal people, as required by section 82 of the Native Title Act 1993 (Cth). Specifically, the court needed to determine if the restrictions sought by the applicants were appropriate under the circumstances and if they were in the interests of justice.

Justice Lee found that the applicants had sufficiently demonstrated the existence of traditional laws and customs that prohibit men from discussing women's law with females, justifying the restrictions on the evidence. The court held that the absence of evidence indicating a belief in potential punishment for breaching these laws did not negate the appropriateness of the restrictions. The court emphasized that section 82 of the Act required taking into account the cultural and customary concerns of Aboriginal people, which included their claim of adherence to traditional laws and customs. The court concluded that making the restrictions was necessary to respect the cultural integrity of the applicants' proceedings and did not impair the trial's fairness. Consequently, the court upheld the restriction orders, refusing to set them aside.

Orders