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Editors --- "Mary Yarmirr & Ors v Northern Territory & Ors - Case Summary" [1997] AUIndigLawRpr 47; (1997) 2(4) Australian Indigenous Law Reporter 494

Mary Yarmirr & Ors v Northern Territory & Ors

15 April 1997 Melbourne

Native title -- exclusion of lawyers, consultants, or a party from attending the hearing of certain evidence on the basis of gender -- exclusion of the public from attending the hearing of certain evidence -- traditional laws and customs requiring restriction.

The applicants sought a direction that only males be present at the hearing of certain evidence, and further that members of the public be excluded, on the basis of traditional laws and customs which require such restrictions.

Held:

1. Apart from any specific power conferred by the Native Title Act 1993, the court has no power to deny the right of a party to be represented by a barrister or solicitor of the party's choice, and may not restrict that right by reason of the gender of the barrister or solicitor. Section 78 of the Judiciary Act 1903 considered.

2. Section 82(2) of the Native Title Act 1993, which requires a court to take account of the cultural and customary concerns of Indigenous people, is expressed in general terms and cannot be construed as modifying the explicit provisions of the Judiciary Act 1903 which grant a party a right to choose his or her own legal representation.

3. Generally a court may not exclude a party from a hearing except where the party's conduct justifies such exclusion. Section 17(4) of the Federal Court of Australia Act 1976 does not authorise a court to exclude a party merely on the basis of gender as this would be the antithesis of justice.

4. Members of the public may be excluded from a hearing when the interests of justice require it. The court directed that the public be excluded from attending certain evidence, and that publication of that evidence be restricted.

Note:

Notwithstanding the legal conclusion reached, the court and parties indicated that they would ensure that female court staff, counsel and anthropological consultants were not present at the hearing for which restrictions were sought. Accordingly the applicants did not appeal this decision. Olney J's conclusion was overruled by the Full Federal Court in Western Australia v Ward on 8 July 1997, which held that gender based restrictions may be imposed where the interests of justice require it. It was held that s 78 of the Judiciary Act 1903 merely permits legal representation in Federal Courts without preventing a court, in appropriate cases, from restricting the presence of counsel on the basis of gender.

Olney J:

This matter came before me for further directions on 14 April 1997. A minute of my directions is annexed to these reasons. For the most part I indicated at the time the matter was before me my reasons for making the orders but I reserved for consideration the question of what orders should be made in relation to the applicants' request that I exclude females from a particular sitting of the Court. This matter was argued at considerable length and issues of fundamental importance to the hearing of proceedings under the Native title Act 1993 were canvassed. It is appropriate, before entering upon a discussion of the matters most recently dealt with, that I should refer briefly to the prior history of the proceeding.

This is a claim for a determination of native title under the Native Title Act 1993 (NTA). The application was duly lodged with the Federal Court by the Registrar of the National Native Title Tribunal pursuant to s. 74 of the Native Title Act 1976 and a first directions hearing was held at Darwin on 4 July 1996. At that time various orders were made, if not by consent, at least without any serious debate, including an order that the trial commence at Croker Island on 22 April 1997. It was anticipated that the period 22 April to 3 May 1997 would be occupied in hearing the evidence-in-chief of the Aboriginal witnesses to be called by the applicants and that the Court would convene subsequently, probably at Darwin, to hear any other evidence and legal argument. A second directions hearing date was fixed for 7 March 1997.

At the second directions hearing further orders were made including the following:

On or before 25 March 1997 the applicants file and serve:

and including:

(i) details of any site visits proposed, which proposals are to deal with the following:

A. length of visit;

B. whether the site is on land or at sea;

C. whether sites have been detailed in the material filed;

D. whether it is proposed that any witness give evidence of such sites;

E. whether, if the site is on land, shade and drinking water will be available or should be provided by parties attending;

F. whether, if the site is at sea, evidence is proposed to be given on a boat which will provide transport to the site to all parties;

G. whether any restrictions will be sought on access to any site or in respect of information communicated at
that site;

H. with whom the Court and parties may liaise to make necessary arrangements for site visits.

On or before 8 April 1997 the applicants:

(a) provide further and better particulars of their statement of facts, issues and contentions as sought by the respondents represented by Cridlands in a request dated 7 January 1997;

4. On or before 25 March 1997 the applicants file and serve notification of any restrictions sought to be imposed upon the evidence and the basis for those restrictions.

5. On or before 8 April 1997 any respondent who objects to the restrictions sought file and serve a notice of objection.

6. Any objection which is not resolved by negotiation be referred to the Court for determination on Thursday 10 April 1997 at 10.00 am.

7. On or before 8 April 1997 the applicants file and serve witness statements detailing the substance of evidence to be given by those witnesses upon whom the applicants will rely at the hearing of the evidence on and around Croker Island from 22 April to 3 May 1997.

On or about 27 March 1997 the applicants served a document setting out a proposed timetable and other information of the kind referred to in order 2(c). The timetable indicated that it was proposed to visit New Year Island on 29 April 1997 and that such visit be limited to men only. Subsequently, on about 10 April 1997, the applicants filed a revised timetable which does not contemplate a visit to New Year Island but indicates that it is proposed to visit Somerville Bay on the afternoon of 24 April 1997 and that the applicants seek an order to restrict the persons present during the evidence to male counsel, consultants and Court staff and that the material not be published or communicated other than to male counsel and consultants.

On 7 April 1997 the solicitor for the Northern Territory filed notice objecting to the inclusion in the proposed timetable of a site visit to New Year Island limited to men only. The objection raised several grounds including the following:

3. The applicants have not notified the first respondent of the precise nature of the restrictions sought to be imposed on the evidence (other than that the site visit will be limited to men) nor of the basis upon which this evidence is to be so restricted.

4. Neither the first respondent nor, in our respectful submission, the Court has sufficient information at present to form a view as to whether restriction of the site visit to New Year Island to men only is appropriate or necessary in these proceedings.

5. The first respondent's view is that the onus is upon the applicants to justify the need for any restrictions on evidence and that the mere assertion in the timetable that a site visit will be limited to men only is not sufficient to exclude female counsel and solicitors from attending that session.

(The proposed hearing of the objection which order 6 contemplated would be on 10 April 1997 was rescheduled to meet the convenience of the parties and was held on 14 April 1997).

On 14 April 1997 the Solicitor-General for the Commonwealth (appearing on behalf of the second respondent) filed in Court a notice of objection asserting:

1. Pursuant to clause 5 of the order of Justice Olney made on 7 March 1997, the second respondent hereby gives notice of its objection to the inclusion in the revised proposed timetable, served on 10 April 1997, of restrictions proposed to be imposed by the applicants with respect to evidence to be taken on a site visit to Somerville Bay on Thursday 24 April 1997.

2. The second respondent objects to the order sought by the applicants that persons present during the evidence at Somerville Bay be restricted to male counsel, consultants and Court staff and that the material not be published or communicated other than to male counsel and consultants. In particular, the second respondent objects to any restrictions imposed that would preclude legal representatives from attending the taking of evidence or of having access to the transcript of any evidence taken.

The applicants have not complied with order 7 of 7 March 1997 relating to the filing and service of witness statements and at Court on 14 April 1997 indicated through counsel that they would be unable to do so. Not only that, but counsel indicated that the applicants wanted cross-examination to proceed at the conclusion of each witness's evidence.

The practice of delaying cross-examination of claimants' witnesses until the completion of the whole of their evidence is one which has been adopted in inquiries conducted under the Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act) and also in at least one other proceeding under the Native Title Act in this Court. There is good reason for adopting such a practice. Often it is the case that witnesses will give evidence on more than one occasion particularly in cases (such as this) where it is intended that evidence be taken during site visits. Further, it is usually the case (as in this proceeding) that the applicants' case is not particularised in any great detail in advance of the hearing and thus until the evidence is given the true basis of the case does not appear. In the instant case, the failure of the applicants to comply with the order to provide witness statements compounds the uncertainty and fully justifies the continuation of the practice that cross-examination be delayed until the whole of the applicants' lay witnesses have given their evidence.

The applicants are also in default in complying with order 3(a) of 7 March 1997 relating to the provision of further and better particulars sought by one group of respondents.

On the day the order was made the applicants were well aware of the particulars being sought and raised no objection to the order nor to the substance of the request. No response was received from the applicants within the time specified in the order but on 1 April 1997 the applicants filed a document which is argumentative and avoids providing any of the particulars sought. I do not regard the response filed as adequate and although the parties seeking the particulars do not wish at present to press the matter, the applicants' failure to address their obligation under the order in a meaningful way, coupled with their failure to make any attempt to comply with other orders made on 7 March 1997 leaves them in jeopardy of any costs penalty that may flow from their disregard of the Court's orders.

The applicants have indicated that they propose that only males be present on the occasion that evidence is taken at Somerville Bay and further that members of the public be also excluded. In substance what is now sought is a direction similar to that given by Lee J in Ward and Others v Western Australia and Others (proceeding WAG 6001 of 1995) when he ordered that at the hearing of gender restricted evidence in that proceeding each party is to be entitled to be represented by no more than two lawyers of the same sex as the witnesses and to have present one anthropologist of the same sex as the witnesses for the purpose of assisting the party's lawyers. His Honour also made orders relating to the divulging of such evidence to others and restricting access to the transcript of the evidence.

I have no difficulty with the proposition that there are some aspects of Aboriginal customary laws and traditions which, according to those laws and traditions, should not be disclosed to persons who are not entitled to know about them. Such restraints are not necessarily confined to disclosure of "men's business" to women or to "women's business" to men but those are common instances when communication may, according to customary laws and traditions, be prohibited. Successive Commissioners under the Land Rights Act have frequently given directions concerning such restrictions but the present proceeding is different in character from the type of administrative inquiry required to be made under the Land Rights Act and I do not find the established practices of the Aboriginal Land Commissioners to be of much relevance here. This is a proceeding in the Federal Court of Australia in which the applicants seek the exercise of the judicial power of the Commonwealth. Whereas the Aboriginal Land Commissioner's function is to determine the existence of traditional Aboriginal ownership (as defined in the Land Rights Act) of claimed land and if found, to make recommendations to the relevant Minister concerning the granting of such land, the Court in the exercise of its jurisdiction under the Native Title Act is required to make a determination as to whether or not Native Title exists in relation to a particular area of land or waters and if so to determine, inter alia, the nature of such rights and interests (NTA s. 215).

Section 17 of the Federal Court of Australia Act 1976 (the FCA) provides that except when sitting in Chambers, the jurisdiction of the Court shall be exercised in open Court (FCA s. l 7(l)) but the Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or of those persons would be contrary to the interests of justice (FCA s. 17(4)); and the Court may, during or after the hearing of a proceeding in the Court, make an order forbidding or restricting the publication of particular evidence as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth (FCA s. 50).

The right of a party to a proceeding under the Native Title Act 1993 to be represented by a barrister or solicitor is established by s. 78 of the Judiciary Act 1903 which provides that in every court exercising federal jurisdiction the parties may appear personally or by such barristers or solicitors as by the Judiciary Act or the laws and rules regulating the practice of those courts respectively are permitted to appear therein. Part VIII of the Judiciary Act deals with the entitlement of a person to practice in any federal court as a barrister or solicitor or both. In effect all State and Territory practitioners have (subject where appropriate to his or her name being entered in the Register of Practitioners) the right of audience in any federal court. The Native Title Act expands the right of audience in proceedings under the Act to include a barrister, a solicitor or another person (NTA s. 85).

Apart from any specific power that may be conferred by the Native Title Act, the Court does not have the authority to deny the right of a party to be represented by a barrister or solicitor of the party's choice and a fortiori does not have the power to deny a party the right to be represented by a barrister or solicitor by reason of the gender of the barrister or solicitor.

In support of the direction sought the applicants call in aid s. 82(2) of the Native Title Act which mandates that the Court, in conducting proceedings under that Act, must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders. This raises the question as to whether s. 82(2) empowers the Court to deny a party the right to be represented by a legal practitioner of the party's choice.

Section 219 of the Native Title Act amended s. 59 of the Federal Court of Australia Act to enable the Court to make Rules of Court in relation to the practice and procedure of the Court in relation to any matter arising under the Native Title Act (NTA s. 59(2)(zj)). Order 75 of the Federal Court Rules (Native Title Rules) came into effect on 21 March 1994 but has since ceased to be of effect. There are currently no operative rules in force specifically dealing with practice and procedure in relation to Native Title Act proceedings. However, the previous rules did not touch upon the matter presently under consideration and there is no other Rule of Court which entitles the Court to interfere with the right of a party to choose his or her own legal representation. I do not think that s. 82(2) of the Native Title Act, which is expressed in very general terms can be construed as modifying the effect of the very explicit provisions of the Judiciary Act and this is particularly so in the light of the absolute terms in which s. 85 of the Native Title Act is expressed. If s. 85 had been expressed to be subject to s. 82(2) it may well be that a different conclusion would be open, but that is not the case.

In my opinion the legislative regime presently applicable to the representation of parties in Federal Court proceedings is not such as to authorise the Court to make an order which would limit the choice of the legal representative of the party by reference to the gender of the representative. The Solicitor-General for the Commonwealth has suggested that if there were such a power it would be in conflict with Chapter III of the Constitution. I find it unnecessary to explore that aspect of the argument as I am satisfied that no such power exists under the current legislation.

It is a generally accepted principle that the Court has no authority to exclude a party from the hearing of a proceeding except where the party's conduct may justify his or her exclusion. In my opinion it would rarely be the case where the presence of a party could be said to be contrary to the interests of justice. Indeed, the contrary is so. To exclude a party from the hearing of his or her own cause would be the very antithesis of justice. I do not think that s. 17(4) of the Federal Court Act operates so as to authorise the Court to exclude a party who has not misconducted himself or herself and in particular the section could not reasonably be construed so as to authorise the exclusion of a party merely by reason of the party's gender.

There have been many cases in which the power to exclude the public from a sitting of the Court has been exercised in the interests of justice. In the present case it seems that the initial restraint sought namely the exclusion of females, has been expanded to the exclusion of all persons other than a designated number of male lawyers and anthropologists. The only material before the Court in support of the restrictive orders sought is a brief reference in the anthropological report filed by the applicants and the submission of counsel to the effect that the applicants' witnesses may be reluctant to testify as to some aspects of their case in an unrestricted forum. In my view the Court needs something more persuasive than what has been put before it to justify the wide ranging orders that are sought. In the circumstances, based on what material is presently before the Court and having regard to what I consider to be the legal entitlement of parties to be represented by legal practitioners of their choice and to be present during the proceedings, the only direction that I am at this time prepared to make in relation to the proposed sitting of the Court at Somerville Bay on 24 April 1997 is that female members of the public be excluded. This direction is made on the understanding that the whole of the evidence to be given at the particular sitting will be of the nature outlined by counsel for the applicants and is made without prejudice to any subsequent direction that may be given to authorise a full disclosure of any part or parts of the evidence which is not properly to be regarded as confidential. I direct that, until further order, publication of any evidence given at Somerville Bay on 24 April 1997 be prohibited and that unless otherwise ordered access to the transcript of such evidence be restricted to the parties, their legal advisers and male professional consultants. I should mention however, unless there be any misunderstanding, that none of these orders in any way restricts the use to which I may put the evidence in question in deciding the case, subject of course to my own obligation under s. 82(2) to take account of the cultural and customary concerns of the applicants.

I have not addressed the question of Court officers as in the present case it is contemplated that the Court will be constituted by a male Judge and in order to avoid the occasion for causing any unnecessary offence I will arrange to have only male Court officials present on the occasion in question. This gesture should not be construed as an indication that I consider it inappropriate for my female staff to be in attendance.

There are two further matters which require comment, one was mentioned at the directions hearing and the other was not.

As Croker Island and the other islands likely to be visited during the taking of evidence are Aboriginal land under the Land Rights Act it is necessary that the Northern Land Council issue permits under the Aboriginal Land Act 1993 (NT) to enable non-Aboriginals to enter the land. At the hearing on 7 March 1997 and again on 14 April 1997 I indicated that I expected the applicants to make arrangements with the Northern Land Council to ensure that no restriction will be placed upon the entry of any person for the purpose of attending sittings of the Court. On 14 April 1997 I was told that it would be necessary for any person wishing to attend to seek a permit but that same would be issued upon request. As I indicated at the time this is an unsatisfactory response. If the Court is to conduct its business on Aboriginal land at the request of, and to meet the convenience of, the applicants, I expect that access to the Court hearings by any member of the public will be unrestricted and not to be granted upon specific request.

Any member of the public is entitled to be in attendance and is under no obligation to identify himself or herself. In these circumstances I direct that by 12 noon (EST) on 18 April 1997 the applicants advise the Court and all respondent parties that arrangements are in place which enable persons wishing to attend at Croker Island for the purposes of this proceeding may do so without the necessity of making application.

The final matter I wish to address has to do with a matter of cultural concern. It is commonly understood that in certain circumstances it is offensive to Aboriginal people for certain names and indeed, in some contexts, some words to be used. It is my desire to avoid the opportunity for offence to be caused by the inadvertent use of a name or word and accordingly I direct that at the opening of proceedings on 22 April 1997 counsel for the applicants provide a list of any names or other words which should be avoided together with an indication, where appropriate, of an alternative name or description that may be used to convey the same meaning without causing offence.