Western Australia v Ward

Case [1997] FCA 585


FEDERAL COURT OF AUSTRALIA

NATIVE TITLE - CONSTITUTIONAL LAW - whether orders made by Federal Court judge under s 50 of the Federal Court of Australia Act (1976) to restrict access of “gender restricted” evidence a valid and proper exercise of power - whether orders inconsistent with Ch III of the Constitution.

Jucidiary Act 1903 (Cth); ss 78 and 78B
The Constitution; s 72 and Ch III
Native Title Act 1993 (Cth); ss 82(2) and 85
Federal Court of Australia Act (1976) (Cth); ss 17(4) and 50

Dietrich v The Queen (1992) 177 CLR 292, considered
Grollo v Palmer (1995) 184 CLR 348, considered
Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 70 ALJR 743, considered
Hadid v Lenfest Communications Inc (Hill J, 4 November 1996, unreported), referred to
Australian Broadcasting Commission v Parish (1980) 29 ALR 228, referred to
Yarmirr v The Northern Territory of Australia (Olney J, 15 April 1997, unreported), considered

THE STATE OF WESTERN AUSTRALIA v BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES

WAG 57 of 1997

HILL, BRANSON & SUNDBERG JJ
SYDNEY (Heard in Melbourne)
8 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA )
)
WESTERN AUSTRALIA DISTRICT REGISTRY )  No. WAG 57 of 1997
)
)
GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:             

THE STATE OF WESTERN AUSTRALIA
Appellant

  AND:  

BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES
First Respondents

CECIL NINGARMARA & ORS
Second Respondents

DELORES CHEINMORA & ORS ON BEHALF OF THE BALANGARRA PEOPLES
Third Respondents

CORAM: HILL, BRANSON & SUNDBERG JJ
PLACE: SYDNEY (HEARD IN MELBOURNE)
DATED: 8 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

  1. The appeal be allowed in part.

  1. The orders made by Lee J on 11 April 1997 be varied by deleting from order 7 the words “for these reasons” and by substituting for order 6 the following new order:

“Occasions may arise when it will be in the interests of the administration of justice that the taking of evidence should occur in restricted circumstances.  These occasions may arise where traditional laws and customs prevent women and men respectively speaking about certain matters, for example, matters going to Law, ceremony and ritual, in the presence of persons of the opposite gender and the communication of the details of such matters to persons of the opposite gender.”

  1. The appellants pay the respondents’ costs of the appeal.

  1. There be no order as to costs of the intervenors.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
)
WESTERN AUSTRALIA DISTRICT REGISTRY )     No. WAG 57 of 1997
)
)
GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:             

THE STATE OF WESTERN AUSTRALIA
Appellant

  AND:  

BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES
First Respondents

CECIL NINGARMARA & ORS

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AGLC
Western Australia v Ward [1997] FCA 585
Case
[1997] FCA 585
Decision Date

CaseChat Overview and Summary

In this case, the State of Western Australia appealed against orders made by a single judge of the Federal Court of Australia in relation to the admission of "gender restricted" evidence in a native title proceeding. The State of Western Australia, the Commonwealth, the Attorney General for the State of New South Wales and the Attorney General for the Northern Territory intervened in the appeal. The appeal was heard by Hill, Branson and Sundberg JJ. The primary judge had made orders restricting the circumstances in which "gender restricted" evidence could be heard and the dissemination of the evidence or record of the evidence produced. The State of Western Australia submitted that the orders were inconsistent with Chapter III of the Constitution and/or unreasonable. The court found that the orders were neither inconsistent with Chapter III of the Constitution nor unreasonable. The orders were varied by deleting the words "for these reasons" from one order and substituting a new order in its place. The new order stated that the taking of evidence in restricted circumstances could only occur if it was in the interests of the administration of justice. The appeal was allowed in part. The appellant was ordered to pay the costs of the respondents. The intervenors were not ordered to pay any costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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