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
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:
The appeal be allowed in part.
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.”
The appellants pay the respondents’ costs of the appeal.
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
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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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.