657. Confidential Communications. Although the powers discussed in para 653-6 will usually be sufficient to protect evidence by Aborigines themselves of secret matters contrary to Aboriginal customary laws, other situations can arise. For example, information contained in an anthropologist’s report may be of a confidential nature. Unrestricted publication of the evidence may breach customary law rules, and may also breach undertakings between the anthropologist and the Aboriginal community concerned. Generally there is no problem with the use of such evidence by the persons from whom it emanated, or with their consent. But an opposing party may seek to subpoena such material. This may lead to forced disclosure of material of a confidential nature, unless it is possible to rely on legal professional privilege, public interest immunity, or some other ground of privileged communications.
658. Public Interest Immunity. There is much case law on the extent and scope of the public interest immunity which operates to exclude evidence of communications, the disclosure of which may harm state interests or which may be contrary to the ‘national interest’ or to the ‘proper functioning of the public service’. There is no precedent extending the categories of public interest to cover confidential material relating to Aboriginal customary laws. In the Warumungu Land Claim, the Land Commissioner rejected a claim by the Sacred Sites Protection Authority that the public interest was threatened by requiring the records in question to be disclosed. While conceding that the public may have an interest in the effective performance of the Sacred Sites Authority, the Land Commissioner rejected any parallel between the case before him and the ‘categories of public interest recognised as attracting Crown privilege’. He considered it inappropriate to extend the categories of public interest to the confidential information in question, on the basis that if Aboriginal people sought the protection of the Aboriginal Land Rights (NT) Act 1976, (Cth) they must be prepared to reveal sufficient information to justify the protection offered. Even assuming the Authority could claim public interest immunity, the Land Commissioner indicated that the public interest would not be jeopardised by the production of the documents in question, having regard to the protective measures he proposed to order. In the light of the case law, it is difficult to conceive of circumstances in which public interest privilege could successfully be invoked to protect confidential information relating to Aboriginal customary laws and practices.
659. Legal Professional Privilege. In certain circumstances it may be possible to bring confidential communications between Aboriginal informants and others such as anthropologists, linguists, legal advisers, Land Councils and community advisers within the protection of legal professional privilege. For example in the Warumungu Land Claim documents regarded as privileged included:
the claim book and drafts of claim books which are to be regarded as drafts of pleadings;
copies of field work (though not the originals) prepared for the Sacred Sites Protection Authority on other projects where the copies were made for purposes of preparing the land claim;
anthropological and other notes prepared for the purposes of legal proceedings, even though the documents were in the hands of third parties.
In each case the test to be applied is a relatively strict one: it is whether the documents in question were prepared solely for the purpose of obtaining legal advice or of preparing a party’s case for legal proceedings (including administrative proceedings of a quasi-judicial kind), pending or anticipated. The possibility that a party will be held to have waived the privilege further restricts the scope of protection. Thus it will only be in special circumstances that confidential communications about Aboriginal customary laws will be protected by legal professional privilege.
660. Extension of Legal Professional Privilege to Other Relationships. The law of legal professional privilege has been narrowed considerably in recent years, and it is very much a special and extraordinary privilege. Like virtually all other confidential professional relationships, communications between anthropologists and their clients or informants are not protected by a privilege from disclosure, in the way that communications between solicitors and their clients for the purpose of obtaining legal advice or conducting legal proceedings are protected. In its Evidence Report (Interim) this Commission rejected any extension of an absolute privilege to cover such situations. Rather than creating new categories of privilege it proposed to give the court a discretion in deciding whether to compel production of ‘confidential communications’ and ‘confidential records’. This would enable the court to balance the desirability of gaining access to such evidence, against the disadvantages, such as harm to an interested person or to a confidential relationship, which may result from disclosure. ‘Confidential records’ would include file notes, assessments and other data collected by anthropologists. In exercising its discretion the court would take into account:
(a) the importance of the evidence in the proceedings;
(b) if the proceeding is a criminal proceeding — whether the evidence is adduced by the defendant or by the prosecutor;
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceedings; and
(d) any means available to limit publication, of the evidence.
However the Professional Association for Applied Anthropology and Sociology argued in a submission to the Commission that a special anthropologist-client privilege should be created:
We believe that a special case can be argued for the extension of privilege to anthropological communications and records, if not in a general sense, then at the very least in those circumstances (eg the hearing of land claims, heritage protection and customary law matters) where anthropological evidence is likely to be of direct relevance to the issues … Anthropologists are often called upon to distinguish themselves from other members of their own societies in the ways in which they receive and treat cultural information. The unauthorised disclosure of confidential material not only has the potential to undermine the basis upon which anthropological inquiry is conducted but may do irreparable damage to a host group or community. The fact that such material may only be revealed to the court should not necessarily be a consideration in decisions about its revelation. The very process of unauthorised disclosure may be as much the issue as the content of the communications … [T]here should be a statutory provision extending privilege to confidential anthropological communications and records in federal and Territory jurisdictions, including legislation enacted to recognise Aboriginal customary law, and … such communications and records should only be admitted with the consent of the anthropologist and the party to whom the communications and records relate … IT]he only exception to this provision should be communications made for a criminal purpose.
661.Conclusions. The argument for a specific privilege is strongest in the context of particular legal or administrative processes (eg land claim hearings) in which anthropologists play a role. But, as the Commissioner held in the Warumungu Land Claim, there is no doubt that reports or other material prepared by anthropologists or other social scientists for the purpose of preparing a claim may attract legal professional privilege. The difficulty at this level, if there is one, lies in the very extensive operation given in the Warumungu decision to the doctrine of waiver of privilege. But the situation in that case was a very special one, so that even if the decision is accepted it by no means follows that confidential communications made to anthropologists or others engaged in courts or tribunals in para-legal or legal roles will not be privileged. So far as the wider range of tasks unrelated to the preparation of material for the purposes of legal or quasi-legal proceedings engaged in by anthropologists and other social scientists are concerned, the Commission believes, for the reasons outlined here and spelt out in more detail in the Evidence Report (Interim), that to extend the law of privilege to grant an absolute privilege to anthropologist-informant relationships is inappropriate. There would be no reason to allow such a privilege to anthropologists but not to linguists, community advisers and others who may be entrusted with Aboriginal secrets. It is undesirable to extend the categories of absolute privilege this manner. The creation of a discretion for all categories of confidential communications is a better solution. In the special context of confidential communications concerning Aboriginal customary laws, there should be a special provision which allows the court, in appropriate cases, to protect confidential communications or records relating to the customary laws of an Aboriginal community. Since these are the product of an oral tradition, both the general problem of secrecy and the specific one of confidential communications or records would be addressed by such a provision. These records should be defined so as to include field notes, photographs, tape recordings and other electronic recordings. In some circumstances it may be necessary for the court to exclude certain evidence altogether. Before doing so the court should weigh the likelihood of harm to interested persons, to the Aboriginal community concerned, to any confidential relationship involved or to any class of such relationships, against the importance of the evidence, by whom it is called and the nature of the proceeding. The court’s powers to protect confidentiality in other ways will also be relevant. A general provision such as that recommended here will go a considerable way to resolving the difficulties described in this Chapter. This provision should apply both to courts and to other tribunals established by law and having the power to take evidence. It would therefore apply to the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). In view of concerns raised by the Commissioner’s decision in the Warumungu Land Claim, there may be a question whether some more extensive exclusion or privilege is necessary to protect confidential material under that Act. In the absence of clear evidence of difficulties arising from that decision the Commission is not satisfied that such a provision is necessary. However the matter should be kept under review.