Widjabul Wia-bal v Attorney-General of New South Wales (Confidentiality of expert reports)
[2023] FCA 806
•30 June 2023
FEDERAL COURT OF AUSTRALIA
Widjabul Wia-bal v Attorney-General of New South Wales (Confidentiality of expert reports) [2023] FCA 806
File number(s): NSD 1213 of 2018
NSD 1174 of 2013Judgment of: RARES J Date of judgment: 30 June 2023 Catchwords: PRACTICE AND PROCEDURE – suppression and non‑publication orders – application for suppression and non-publication of parts of anthropological and historical reports exchanged by applicant and State filed to support making of consent determination under s 87 of Native Title Act 1993 (Cth) – whether proposed redactions properly made to suppress matters not publicly known or revealing confidential specific cultural knowledge or protocols – where some redactions related to matters disclosed in Form 1 filed to commence proceeding – whether suppression necessary to prevent prejudice to the proper administration of justice – Held: application granted in part Legislation: Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 (Cth) s 41
Federal Court of Australia Act 1976 (Cth) ss 37AF(1), 37AG(1)(a), (2), 37AI(1)
Native Title Act 1993 (Cth) ss 87, 87A, 94A, 223, 225
National Parks and Wildlife Act 1974 (NSW)
Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales
Cases cited: Australian Broadcasting Commission v Parish (1980) 43 FLR 129
Dickason v Dickason (1913) 17 CLR 50
Grassby v The Queen (1989) 168 CLR 1
Hogan v Australian Crime Commission (2010) 240 CLR 651
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
O’Brien v Komesaroff (1982) 150 CLR 310
Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221
Scott v Scott [1913] AC 417
Widjabul Wia-bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521
Division: General Division Registry: New South Wales National Practice Area: Native Title Number of paragraphs: 46 Dates of hearing: 6 March 2023, 28 April 2023, 30 June 2023 Counsel for the applicant: Mr V Hughston SC (6 March 2023 only) with Dr A Frith Solicitor for the applicant: NTSCORP Limited Counsel for the first respondent: Ms K Morgan SC (28 April 2023 only) with Mr E Lee Solicitor for the first respondent: Crown Solicitor’s Office ORDERS
NSD 1213 of 2018
NSD 1174 of 2013BETWEEN: WIDJABUL WIA-BAL
Applicant
AND: ATTORNEY-GENERAL OF NEW SOUTH WALES
First Respondent
BYRON SHIRE COUNCIL
Second Respondent
LISMORE CITY COUNCIL (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
30 JUNE 2023
THE COURT ORDERS THAT:
1.Order 1 made on 25 November 2022 be vacated.
2.The applicant file within 7 days:
(a)a copy of the anthropological report of Simon Correy dated 18 November 2022 and filed on 23 November 2022 (the Correy report) that has the following portions redacted:
(i)the last five words of the first sentence of the extract quoted in paragraph 127; and
(ii)the whole of the second sentence of the extract quoted in paragraph 128;
(b)a copy of the historical report of Natalie Rugiano dated 28 February 2014 and filed on 23 November 2022 (the Rugiano report) that has the following portion redacted:
(i)the whole of the last sentence of paragraph 22 on page 16.
3.Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), the following documents on the Court file be suppressed and not be published to any person other than the applicant and the first respondent:
(a)the unredacted version of the Correy report filed on 23 November 2022;
(b)the partly redacted version of the Correy report filed on 18 November 2022;
(c)the unredacted version of the Rugiano report filed on 23 November 2022;
(d)the partly redacted version of the Rugiano report filed on 18 November 2022;
(e)annexures MRV-7 and MRV-9 to the affidavit of Matilda Rae Vaughan affirmed on 18 April 2023.
4.Order 2 be stayed for 14 days.
THE COURT NOTES THAT:
5.Order 3 is necessary to prevent prejudice to the proper administration of justice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)RARES J:
INTRODUCTION
The applicant, Widjabul Wia-bal, applied on 22 November 2022 for orders (which the active respondent, the Attorney-General of New South Wales, neither consented to nor opposed) that two redacted expert reports that it filed on 18 November 2022, namely the anthropological report of Simon Correy, dated 18 November 2022 (the Correy report), and the historical report of Natalie Rugiano, dated 28 February 2014 (the Rugiano report), be suppressed pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) on the ground that the suppression is necessary to prevent prejudice to the proper administration of justice.
THE NATURE OF EVIDENCE ADDUCED IN SUPPORT OF A CONSENT DETERMINATION
On 21 October 2022, I required the applicant to file anthropological material during the course of case managing this proceeding in the period immediately before, and for the purposes of determining whether to make, the consent determination of native title under s 87 of the Native Title Act 1993 (Cth) that I made on 19 December 2022 (Widjabul Wia-bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521).
I considered that I needed the anthropological material in order to be able to, first, be satisfied of the matters required in s 87 and, secondly, prepare meaningful reasons for judgment that could be delivered in the presence of, among others, the public and Widjabul Wia-bal traditional owners on country in Lismore to explain why I was satisfied that, together with the material and submissions already, and to be, filed by the applicant and the State of New South Wales to support the consent determination, making such an order would be within the power of the Court under s 87(1)(c).
As is well recognised, a consent determination of native title under the Native Title Act is not equivalent to a final determination made after hearing a contested application. Given the different nature and detail of evidence that parties can be expected to present to the Court for the purpose of satisfying it to exercise the power to make determinations by consent conferred by the Parliament under ss 87 and 87A, the Court will correspondingly evaluate that evidence in a manner appropriate to the different requirements for proof than would apply in contested litigation. Ordinarily, this contemplates that the Court will not impose undue formality on the parties to prove the matters necessary to satisfy it to make a consent determination in accordance with the relevant provisions of ss 87 or 87A.
In Widjabul Wia-bal [2022] FCA 1521 at [20]-[29], I explained my understanding of the way in which the Court usually proceeds in deciding whether to make a consent determination in accordance with authorities cited there, including at [28] where I said:
What evidence will be sufficient will vary from case to case, but it must show that the orders have a substantive and real foundation. Anthropological evidence is often tendered so as to assist the Court in arriving at this degree of satisfaction. Evidence is relevant for the Court to satisfy itself that the parties had a real basis to arrive at their consent. Indeed, in the first place, because of its cogency, the same evidence is likely to have induced the respondents, especially the Government, to consent to the making of the determination of native title.
Another important consideration is that, as ordinarily is intended to happen, court orders making a determination of native title under the Native Title Act, even if by consent, operate while they remain in force as judgments in rem that affect, among others, public and private land and waters and the use or divestment of resources of the State. When enacting the Native Title Act, the Parliament intended, as stated in the preamble, among other things:
The people of Australia intend:
(a)to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and
(b)to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.
(emphasis added)
These objectives are promoted by the public, as well as the members of the First Nations people concerned, being able to understand, through the reasons of the Court, why the Government parties, in particular, agreed to a consent determination of native title without a contested hearing. Ordinarily, this occurs because a particular claim group has been able to establish sufficient probative connection to the relevant land and waters to the satisfaction of both the relevant Government, the other parties and, importantly, the Court to justify the exercise of the judicial power of the Commonwealth in making a determination of native title in accordance with the requirements of ss 87 or 87A and each of ss 94A, 223 and 225 of the Native Title Act.
Establishing whether or not there is a sufficient basis for the Court to be satisfied that it should make a consent determination that native title exists in relation to a particular area requires some cogent demonstration that “the agreement is rooted in reality”, as the former Chief Justice of Australia, the Hon RS French AC, explained: Native Title – A Constitutional Shift?, published in: H P Lee and P Gerangelos (eds), Constitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton (The Federation Press, 2009) pp 126–154.
THE PRESENT APPLICATION FOR SUPPRESSION AND NON-PUBLICATION ORDERS
At the case management hearing on 21 October 2022, Widjabul Wia-bal, through their representative body, NTSCORP Ltd, and the State indicated vociferous resistance to the provision of anthropological material. Subsequently, on 18 November 2022, Widjabul Wia‑bal filed heavily redacted versions of the Correy and Rugiano reports. The Correy report comprised a compilation of material which Mr Correy had prepared that had never been filed. NTSCORP had provided to the State Mr Correy’s previous reports and the Rugiano report during the earlier protracted negotiations that eventually satisfied the State that it should proceed to the stage of agreeing to the consent determination. Eventually, Widjabul Wia-bal filed unredacted versions of the Correy and Rugiano reports and, on 25 November 2022, I made consent interim orders under ss 37AF(1) and 37AI(1) of the Federal Court Act restricting publication of both the redacted and unredacted reports. However, I told the parties that I would need to be satisfied, in due course, about what, in that material, had the quality of confidentiality that could properly attract the power to make a suppression or non-publication order.
Following the consent determination, there have been three hearings on 6 March 2023, 28 April 2023 and today, in which Widjabul Wia-bal, in particular, sought to support the making of orders redacting or suppressing publication of, until today, very considerable portions of both the redacted and unredacted Correy and Rugiano reports, as filed. I had read those reports in their unredacted versions and, in part, referred to material in them in my reasons for making the consent determination, for the purposes of being satisfied that to do so would be within the power of the Court and I should exercise my discretion under s 87 to make it.
Some of the material in the Correy and Rugiano reports that Widjabul Wia-bal sought be suppressed and not published involved an overreach that could not possibly have been justified. That was because the original claims for the suppression and non-publication orders included the same matter that years before the applicant deliberately had disclosed in the affidavits attached to the Form 1 application filed to initiate this proceeding.
Unlike experience, both in Western Australia and Queensland, it has been the practice in New South Wales for an applicant and the State not to file any, let alone the considerable, anthropological material which an applicant usually provides to the State during sometimes, as here, protracted negotiations to see if it can satisfy the State to proceed to a consent determination.
In this proceeding, the evidence before me suggested that, at one point, substantial additional supplementation of anthropological material was necessary before the State was sufficiently satisfied that it should enter into negotiations for, and ultimately agreed to, a consent determination. During this process, the State sought advice on 12 occasions from senior and junior counsel and received eight expert reports about the adequacy of the material supplied to date from time to time. None of that material was filed in the Court. Instead, what the parties originally intended in October 2022 was that the Court act, effectively only, on their joint submissions and formal affidavits in support of the making of the s 87 agreement.
Part of the difficulty in, and length of, the negotiations may or may not have been caused by the fact that the various draft reports were not prepared for the purposes of, at least an initial round of, evidence to support the making of a final determination or a consent determination on proper material. Whatever the reason for this practice, in my opinion, it is likely to have contributed to, rather than detracted from, delaying the Government arriving at a state of satisfaction that it was appropriate to agree that the Court make such a determination.
Recognition of the native title rights and interests the subject of the consent determination I made on 19 December 2022 involved restoration, only in part, of the rights and interests for which the Widjabul Wia-bal people had been waiting for two centuries or more. The unredacted reports before me in December 2022 demonstrated that there was a reasonable and appropriate foundation for concluding that, since before European sovereignty, there was a real and substantive basis to think that Widjabul Wia-bal have maintained their connection to country and observed their traditional laws and customs in the manner required in ss 223 and 225 of the Native Title Act.
RELEVANT PRINCIPLES
It is important that, when a court is asked to use its judicial power to order that information or evidence not be published or be suppressed, there be proper grounds for doing so. Where the claim is that information is confidential, the claimant must address what Mason J said (with the agreement of Murphy, Aickin, Wilson and Brennan JJ) in O’Brien v Komesaroff (1982) 150 CLR 310 at 326–327, namely to:
identify the particular contents of the documents which he asserts constitute information the confidentiality of which he is entitled to protect. …
the accepted conception of confidentiality, … in substance involves the person seeking to protect the information largely keeping it to himself. …
To simply say that the information is as to the effect and practical operation of discretionary trusts and private unit trust schemes does not identify the information and enable the Court to formulate an order. One needs to know not only what was the information conveyed but also what part of that information was not common knowledge.
(emphasis added)
Another critical matter to bear in mind is that a court, in making a non-publication or suppression order, can only do so if the facts before it establish that such a derogation from the principles of open justice is necessary in the exercise of either a superior court’s inherent powers (see Scott v Scott [1913] AC 417 and Dickason v Dickason (1913) 17 CLR 50), an inferior court’s implied powers (see, eg, John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476D–477C per McHugh JA, with whom Glass JA agreed; Grassby v The Queen (1989) 168 CLR 1 at 16–17 per Dawson J, with whom Mason CJ, Brennan and Toohey JJ agreed) or under statutory powers, such as are conferred on this Court in Div 2 of Pt VAA of the Federal Court Act and, in particular, s 37AF. Importantly, s 37AG(2) requires that “[a] suppression order or non-publication order must specify the ground or grounds on which the order is made”. One ground on which the Court may make such an order is if, as stated in s 37AG(1)(a), “the order is necessary to prevent prejudice to the proper administration of justice” (emphasis added).
The word “necessary” is, as French CJ, Gummow, Hayne, Heydon and Kiefel JJ held in Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [30], a “strong word”. They said, approving what Bowen CJ said in Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 133, that:
[T]he collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”.
Their Honours emphasised that what is involved is the exercise by this Court of the judicial power of the Commonwealth and that this is “a more specific discipline than broader notions of the public interest”. They added in respect of an analogue of the power that is now s 37AF (in [31]) that:
[i]t is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.
A determination of native title by consent under s 87 of the Native Title Act involves the exercise of judicial power of the Commonwealth to declare, create, limit or extinguish rights in rem, enforceable against the world, for the benefit of all persons, including a First Nations applicant people and the relevant State, Territory or Commonwealth Government, having interests in the land and the waters the subject of the determination. Such an exercise of judicial power involving the public, together with rights and interest in land and waters, requires both transparency and legal justification based on appropriate evidence having regard to the differing qualities of proof on the balance of probabilities required for consent, as opposed to final, determinations of native title under the Native Title Act.
CONSIDERATION
Today, Widjabul Wia-bal have sought a very much truncated set of orders concerning, now, only portions of four paragraphs, being two in the Correy report and two in the Rugiano report, and a number of footnote references to locations in the records containing the documentary source for matters stated in documents held by:
(1)the Australian Institute of Aboriginal and Torres Strait Islander Studies (the Institute documents) pursuant to the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 (Cth) (the Institute Act); and
(2)the State in its Aboriginal Heritage Information Management System database (the AHIMS database) managed by the Department of Planning and Environment, through Heritage New South Wales (the AHIMS documents) for the purpose of assisting the process of Aboriginal site protection provided in the National Parks and Wildlife Act 1974 (NSW) and the Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales created by that Department in circumstances where the State law makes it illegal to destroy an Aboriginal site without the permission of Heritage.
Each of those Acts provides its own restrictions on public access for material in records that are held by a Governmental body under them. Relevantly, s 41 of the Institute Act provides:
41 Certain information not to be disclosed
(1)Where information or other matter has been deposited with the Institute under conditions of restricted access, the Institute or the Council shall not disclose that information or other matter except in accordance with those conditions.
(2)The Institute or the Council shall not disclose information or other matter held by it (including information or other matter covered by subsection (1)) if that disclosure would be inconsistent with the views or sensitivities of relevant Aboriginal persons or Torres Strait Islanders.
The evidence of Dr Michael Bennett, an historian employed by NTSCORP, establishes that an application to search the AHIMS database for access to documents held by Heritage under the State’s legislation is granted on the express basis that the documents will be used only for the purpose for which the person requests them and the results are not to be made available to the public. The person making such a request must sign an agreement that grants him, her or it a licence to use the material in accordance with the conditions specified in that licence.
Thus, material obtained from the Institute or from Heritage is not ordinarily publicly available. Nonetheless, that does not mean that it is confidential, in particular where the, or a, purpose of the person using the document is to deploy it to demonstrate that land or waters should be recognised as having particular in rem characteristics that should, or should not, be reflected in a determination of native title in exercise of this Court’s judicial power under the Native Title Act.
The applicant has relied on a deal of evidence, including the affidavit of Ashley Moran affirmed on 1 March 2023. He is one of the persons jointly comprising the Widjabul Wia-bal applicant in this proceeding and a heritage operation, repatriation and conservation officer. Mr Moran deposed that it was important for Widjabul Wia-bal people not to share everything. He said there were stories that could not be shared with the public under Widjabul Wia-bal traditional laws and customs, including their protocols around stories that elders pass down from generation to generation. He said that there were rules about the protection of knowledge and stories that in part provide how he and other Widjabul Wia-bal convey stories to particular members of the tribe. He said that he (and, I infer, others like him) have obligations to protect areas within Widjabul Wia-bal country, including the determination area, and to treat particular information carefully. He said that:
We are caretakers for those sites. It’s about what is necessary to protect the site. We have different stories about a site by different subgroups or families of Widjabul Wia-bal. The most important details are kept within our family groups. If that information was to get out, it would be interpreted in a different way than we intended.
When seeking to explain the applicant’s earlier, much wider, claims for confidentiality, Mr Moran also said that he was concerned that if information in the then extensive redactions of the two reports were disclosed, there would be cultural consequences for Widjabul Wia-bal, as it might allow, or even encourage, those who accessed that information to go to places that they should not go to, which may be dangerous for them. He said that to take away Widjabul Wia-bal’s control of site stories was “to destroy a site or impact it, is a kick in the guts. It takes its toll on Widjabul Wia-bal”. He said that the protection of site stories is of the utmost importance to Widjabul Wia-bal and that the elders had the right to control those stories, pass on knowledge of them to future generations and visitors as they determine and to protect them from physical and spiritual damage.
Mr Moran said that knowledge of dirangan and Jurbihl referred to in the Correy report was central to Widjabul Wia-bal’s spiritual connection to their country and that knowledge of those sites and details of cultural practices performed at them was unique to each family and descent line within the people and was not knowledge that was shared. Mr Moran said that the detailed information about ceremonial practices of “singing out” at the locations of sites and family-specific knowledge and stories set out in the earlier redactions ought be protected. He said that details of the sites then the subject of the redactions provided “more than we would otherwise be comfortable sharing if such information was to be public”. Mr Moran said that, as is the usual situation with First Nations peoples who are custodians of traditional land and waters who wish to preserve a site’s spiritual characteristics and connections and to protect them from strangers who enter without permission, that:
If someone wants to visit and spend time in Widjabul Country and they come from somewhere else, there is a way of going about that which we consider is the right way according to our protocols. They need to show respect and that they know they are in … someone else’s Country and that they can’t just go off and camp anywhere. They would need to go and speak to someone within the family groups who knows about Country and who can tell them about what is appropriate for them to go and do and see on our country.
The proposed redactions from the Correy report
The applicant seeks to suppress two quotations from the papers that Marjorie Oakes had deposited with the Institute and which Mr Correy quoted in pars 127 and 128 of his report. Ms Oakes deposited with the Institute a range of her personal papers covering the period 1892 to 1983. The catalogue maintained by the Institute recorded that access to her papers was closed and the library director had to give permission for anyone to read the collection or make quotations from it. The source of authority to impose those conditions appears to be the discretion conferred on the Institute and its Council by s 41(1) of the Institute Act.
Widjabul Wia-bal argued that s 41(2) is an extension of the discretion to permit certain use of material and not others.
In my opinion, however, s 41(2) is a restriction on the power of the Institute or its Council to disclose any information or other matter held by it, regardless of whether it has imposed its own conditions restricting access under s 41(1), if any such disclosure would be inconsistent with the views or sensitivities of relevant Aboriginal persons or Torres Strait Islanders. There was no evidence that any such views or sensitivities were the subject of consideration by the Institute in granting permission for the use by Mr Correy of the material he cited or relied on in the preparation of the Correy report.
The Correy report quoted, in par 127, Ms Oakes’ account of an incident that the late Lyle Roberts experienced at a djurveel or “clever place”, near Tuncester. In par 22 of the Rugiano report, she wrote the following, for which no redaction is now sought:
Other mythological sites include Bob De Bobbin’s djurveel approximately 7km north-west of Lismore. When Lyle Roberts Jnr visited the site in 1969, he ‘stood on a rock and talked loudly’ to the spirits to announce his arrival.
(bold emphasis in original, footnotes omitted)
Other than a statement about Mr Roberts’ observation of a cultural protocol at the djurveel, I am not satisfied that there is anything in the redacted portion of par 127 of the Correy report that is confidential or otherwise reveals something that has not already been revealed, including in the Rugiano report, about the nature of this djurveel or the management of the site’s spiritual potencies. The only words I consider to fall within specific cultural knowledge that should be suppressed are the five words immediately before the full stop at the end of the first line in the quotation from Ms Oakes in par 127 of the Correy report.
During the course of argument, counsel for Widjabul Wia-bal informed me that the redactions initially sought today in par 128 went further than they should have. That was because the applicant had just noticed in the affidavit of one of the members of Widjabul Wia-bal, Jenny Smith, made on 14 June 2013, forming part of the Form 1 application, described the same site, in relation to a dirangan, in substantially similar terms to Ms Oakes’ recording of her visit to Dunoon in 1974 about which Ms Oakes observed:
On the way there as you rise up the hill after the showground flat, there is a witch (dirangan).
Ms Smith said, in pars 40 and 49 of her affidavit, that this spirit or witch can be seen there at a certain time in the afternoon and was attached to that place.
However, counsel sought to maintain the balance of the proposed redaction of the quotation from Ms Oakes’ papers. The first part of that proposed redaction refers to an experience recorded as occurring at a particular place and time, forming the balance of the first sentence, and the second sentence elaborated what Mr Correy described in the unredacted portion of par 128, introducing the quotation, as:
The protocols employed by Jack Kinchela’s father when encountering a dirangan.
In my opinion, the balance of the first sentence is not information of the kind that ought be regarded as confidential or secret. It simply exposes the particular manifestation of a dirangan on particular occasions. However, I am satisfied that the second sentence reveals important cultural protocols that, on the evidence, are not publicly known and form part of the traditional laws and customs of Widjabul Wia-bal people, enabling them to manage the spiritual potencies of their country. In my opinion, the second sentence in the quotation in par 128 of the Correy report should be redacted.
The proposed redactions from the Rugiano report
The Rugiano report, before the proposed redaction in par 21, reads:
Mound burials have been reported from near Nimbin Rocks (approximately 3km south-west of Nimbin). Nearby were campsites, stone arrangements, axe-grinding grooves and rock paintings. Nimbin Rocks are also associated with a ‘little man called Nyimbunje who was thought to have supernatural powers. A cave on Blue Knob (approximately 5km north of Nimbin) was used by clever men. …
(italic emphasis in original, footnotes omitted)
The final sentence that is sought to be redacted identifies a particular family and apical ancestors associated with it to whom the cave on Blue Knob belonged. That sentence does not reveal any information other than the general identity of a family who, within the Widjabul Wia-bal people, are said to have traditional rights and obligations to protect, look after or care for that cave. That is, the sentence identified which member or family has that specific responsibility.
Ordinarily, it is a feature of First Nations peoples’ connection to land or waters that the permission of particular custodians within a tribe or group needs to be sought, being persons who have specific knowledge of the spiritual potencies and characteristics of that land or waters. Persons who wish to be on or present at any particular part of a people’s country need to ask the individual or persons who are responsible for caring for that part of the country within a tribe or group for permission to be there. There is no evidence to suggest any confidentiality or secret about the identity of those particular persons who have responsibility for the cave on Blue Knob.
In my opinion, in any event, having regard to the other descriptions and material in the Form 1, the identity of the person or persons with that responsibility would be easily able to be deduced (see Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221 at 226–227 [23]–[25] and especially at 228 [32] per Rares, Perry and Hespe JJ). It would be easy for any person to determine the identity of the particular family group with relevant responsibilities for the cave on Blue Knob, having regard to those matters and the unredacted contents of par 21 of the Rugiano report. The proposed redaction of matter from par 21 cannot be supported.
The Rugiano report identifies in par 22 information about other mythological sites, including the “clever place” near Tuncester referred to in [31] above. However, the last sentence of par 22 deals with a different location from that described in the passage I have quoted above and with the spiritual potencies and dangers of that place. On the evidence, those matters are confidential or secret and held by only those with knowledge of them in Widjabul Wia-bal and are not otherwise publicly available.
The proposed redactions of the footnote source references
The applicant also sought to have suppressed a footnote in the Correy report that identified the reference within the Institute’s records whence the quotation from Ms Oakes cited in par 127 came.
Having regard to the provisions of s 41 of the Institute Act, I cannot be satisfied that identification of this specific reference would disclose any matter that requires, and or that renders it necessary for, the proper administration of justice to make an order suppressing that information. Knowledge of a reference that must be consulted does not enable a person to obtain access to the content contained in the material the subject of the source in the footnote reference from the Institute unless he or she can demonstrate a proper basis for which the Institute or its Council would give such access. It is not the function of the Court to make orders suppressing information of this kind (a catalogue reference number) that has no apparent feature of confidentiality in circumstances where legislation confers powers on a body, such as the Institute or Heritage, to grant access to the material to which the reference relates if particular requirements are satisfied before the grant of such access.
Similarly, Widjabul Wia-bal sought the redaction of the specific numbers of site cards in the AHIMS database that Ms Rugiano cited in parts of her report. For the same reasons, I am not satisfied that there is any basis on which such references need to be suppressed, and I refuse to do so.
DISPOSITION
Accordingly, I will make orders that vary the orders made on 25 November 2022 so as to make available the Correy and Rugiano reports in a form that is redacted by removing from public access only those specific redactions that I have found above is necessary to prevent prejudice to the proper administration of justice.
I will also order that the unredacted Correy and Rugiano reports filed on 23 November 2022, and the very substantially redacted versions of those reports filed on 18 November 2022, together with further amended redactions to those reports, being annexures MRV-7 and MRV‑9 to the affidavit of Matilda Vaughan, one of the solicitors for the applicant, affirmed on 18 April 2023, be suppressed and not published. That is because those versions of the two reports reveal the portions in them that I have found confidential. I will stay the operation of those orders for 14 days.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 18 July 2023
SCHEDULE OF PARTIES
NSD 1213 of 2018
NSD 1174 of 2013Applicants
First Applicant:
MURRAY JOHN ROBERTS
Second Applicant:
REGINALD LESLIE KING
Third Applicant:
JUNE GORDON
Fourth Applicant:
MICHAEL RYAN
Fifth Applicant:
JIM SPEEDING
Sixth Applicant:
QUEENIE SPEEDING
Seventh Applicant:
ASHLEY MORAN
Eighth Applicant:
STEVEN ROBERTS
Ninth Applicant:
JENNY SMITH
Tenth Applicant:
LOIS JOHNSON
Respondents
Fourth Respondent:
JALI LOCAL ABORIGINAL LAND COUNCIL
Fifth Respondent:
NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Sixth Respondent:
NTSCORP LIMITED
Seventh Respondent:
TELSTRA CORPORATION LIMITED
Eighth Respondent:
TRANSGRID
Ninth Respondent:
NGULINGAH LOCAL ABORIGINAL LAND COUNCIL
Tenth Respondent:
AMPLITEL PTY LTD AS TRUSTEE OF THE TOWERS BUSINESS OPERATING TRUST (ABN 75 357 171 746)
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