649. Arguments from Secrecy. One argument sometimes presented against the recognition of Aboriginal customary laws is the problem of maintaining secrecy. Apart from the distress that disclosure may cause, Aboriginal customary laws may enjoin severe penalties on those who breach secrecy. In Chapter 8, two responses were made to this argument. First, it is not proposed that recognition take the form of codification, with its associated loss of control, and the danger that matters that are secret and properly the province of the Aboriginal people concerned would be exposed. This is not to say that there will not be circumstances in which Aboriginal people will need to choose whether to disclose secret information as a price for seeking protection of the general law, or whether not to seek that protection. Secondly, there are ways in which the courts, through their existing powers or (if necessary) with additional procedural powers, can restrict access to material that may be presented as evidence of Aboriginal customary laws in a particular case. These existing powers, and their possible reinforcement, are dealt with here.
650. Secrecy and the Land Claim Experience. The Northern Territory land claims have raised the question of secrecy in an acute form. To establish that they are ‘traditional Aboriginal owners’ claimants have had to demonstrate ‘common spiritual affiliations to a site on the land, being affiliations that placed the group under a primary spiritual responsibility for that site and for the land’. In almost every land claim the Land Commissioner has received some material on a restricted basis, that is, available only to certain people such as counsel and those advising counsel. Such restricted evidence has included oral evidence, ceremonies performed, sites revealed and objects of ceremonial significance displayed. Neate lists the following restrictions which have been placed on material, without presenting serious difficulties to participants:
1. evidence which was tape recorded and transcribed but tendered only as a restricted exhibit, available only to those present when the evidence was given;
2. evidence which was not recorded verbatim but of which a summary was prepared (eg by an anthropologist) and tendered as a restricted exhibit, available to only those present when the evidence was given;
3. written notes of evidence made available to those present when the evidence was given, on condition that it not be marked as exhibit and that it be returned to the claimants before the conclusion of the hearing;
4. evidence given in secret session, not recorded in any way and only referred to (if at all) in the most general terms by counsel in the course of final addresses and by the Commissioner in his report: and
5. in exceptional circumstances, evidence given to the Commissioner alone.
Some matters of Aboriginal customary laws are either secret to particular persons or groups or restricted to men or women. Aboriginal women have had to confront difficulties in presenting evidence to an ‘audience’ of the opposite sex, as Meredith Rowell points out:
When giving their evidence the women are always painfully conscious that they are talking in front of a mainly male audience. In this situation, which has no traditional counterpart, women experience a special difficulty beyond ordinary nervousness, especially in answering questions pertaining to Dreamings, to matters of spiritual importance, and to ceremonies … When asked in a court situation, ‘What places does that Dreaming go through?’, women witnesses generally discuss the question at length in their own language first before providing any answers. This discussion involves not so much the identity of the sites but, rather, whether the names should be spoken in the immediate company … What their hesitance means is that the situation prevents them from sharing their knowledge openly. In the reverse situation, if there were a group of white female officials appointed to hear evidence from Aboriginal people about their country, the men would find themselves in a similar dilemma. It is significant to note that during the Willowra claim, when there were fewer than usual white men present (Aboriginal men of course voluntarily abstained from attending), the women’s evidence was clear, confident and complete …
In a number of other ways the procedure of hearings has been adapted to enable Aboriginal men and women to present evidence on a restricted basis. Justice Toohey, the then Land Commissioner, described what could be done:
There have been many occasions during the hearing of land claims when I have been asked to go with Aboriginal men to witness ceremonies, to look at sacred objects and to hear them speak of ceremonial and ritual matters, where no woman has been permitted to attend. Fortuitously, counsel have generally been male and ordinarily there has been no difficulty in them being present. If fortuitously counsel had been female, no doubt the sort of problem that has arisen here would have arisen in regard to that evidence. It would be unfortunate if my capacity to receive evidence thought to be relevant should depend upon the gender of the legal representatives appearing before me and those advising them. As it happens there have been occasions when, with the consent of all appearing at the hearing, I have heard from Aboriginal women and witnessed their ritual activity in the absence of male counsel and their male advisers.
In the Daly River Land Claim, Aboriginal women had allowed a female anthropologist to witness two ceremonies strictly confined to women. The female claimants wished the anthropologist’s description of the ceremonies to be restricted to Justice Toohey himself and to no other man. The following conditions were placed on the tendering of the report:
The women of Daly River are prepared to allow the Aboriginal Land Commissioner, female counsel and female anthropologists to read this document. If male counsel or anthropologists wish to read the document they should set out their reasons for wishing to read the submission in an application to the author, who will then consult with the women involved.
The material was not denied absolutely to other parties. As it happened, counsel participating in the case were male, but female lawyers could have read the material. Justice Toohey concluded that evidence should be admitted on this restricted basis provided it did not ‘unduly prejudice other parties’:
There are competing interests to be weighed. I do not think that claimants should feel obliged to speak of matters they regard as secret. On the other hand it would be unreal to deny the impact that witnesses’ accounts of ritual and ceremonial life have in establishing traditional ownership and traditional attachment to land. Where, as in the present case, evidence takes the form of someone else’s observations, it may well be that a general description will be adequate and present no problems for the claimants or others. These are matters calling for a decision by the claimants and their advisors.
651. The Warumungu Decision. The difficulties that can arise, in the special context of land claim hearings, are made clear by the Commissioner’s decision of 1 October 1985, in the Warumungu Land Claim. Justice Maurice rejected claims to legal professional privilege, and to confidentiality, with respect to certain field notes and other preparatory materials made or gathered by various anthropologists and linguists in the course of the preparation of the claim. Claims to public interest immunity and confidentiality in respect of material gathered for the Northern Territory Sacred Sites Protection Authority were also rejected. The Commissioner referred to ‘the secret nature of Aboriginal religious beliefs and custom’ as ‘a pivotal feature of Aboriginal social life and politics’ and as ‘what a lawyer might describe as a system of intellectual property’. He thus accepted:
that there is a real need to maintain confidentiality with respect to information revealed by Aboriginal people for limited purposes relating to secret sacred matters.
However he held that the public interest in ensuring proper investigation of land claims, and the practical difficulties facing objectors, and counsel assisting the Commissioner, in getting access to the facts independently of the Land Council and experts employed by the Council, overrode the need to restrict disclosure on the basis of confidentiality. These factors also led him to take a very extensive view of the extent to which legal professional privilege had been waived by tendering expert evidence on matters related to the claim. In effect, a broad doctrine of waiver was applied to avoid what was perceived as a failure of the adversary process in the context of land claims. However the Commissioner stressed that disclosure would be subject to stringent safeguards to ensure that the material was used exclusively for the purposes of the claim:
the most important consideration of all is the protective measures which I propose to adopt. The production of the records sought will occur whilst I am sitting in camera. Only myself, my associate, counsel assisting, counsel for the Attorney-General, possibly my consultant anthropologist and the researcher who gathered the material will be present. They will not be permitted to use any of the information so learned for any purpose other than the land claim.
Despite these protective measures, the decision has caused considerable concern, and even dismay, among anthropologists and among those working on behalf of claimants and potential claimants. It has been said that Aborigines will be much more reluctant to disclose important information, both in the context of land claim preparations and also for other purposes (including pure research), that anthropologists will be reluctant to work on behalf of land councils in preparing claims, that elaborate forms of record keeping (or alternatively, minimal record keeping) will have to be adopted, and that it will be difficult to ensure that restrictions on the use of confidential material for other purposes will be observed. It is too early to tell to what extent these fears or predictions will be justified, having regard to the stringent protections proposed by the Commissioner to protect secret material. However the decision highlights the problems of secrecy that can occur when Aboriginal customary laws are relied on in courts or tribunals. Its implications, both generally and for the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), need careful consideration.
652. Secrecy in Court Hearings. Problems of secrecy are by no means confined to land claims, or indeed, to cases involving indigenous customary laws. In other contests (for example, industrial secrecy or welfare reports involving children), information will be tendered to a court on a restricted basis. As Lord Donovan has stated:
There are exceptional circumstances when a court finds itself in this dilemma: if it is known that the information it obtains will be disclosed to the parties before it and also perhaps to the world at large, then those persons who have the information may, despite their legal obligation, resort to one device or another to avoid giving it, or will give information which is not the truth or the whole truth. Justice may not therefore be done. On the other hand, the knowledge that the court will treat the in formation in strict confidence greatly increases the probability that it will be forthcoming. Yet in this case the parties will understandably feel aggrieved that they have not had the chance of … testing the information.
In the context of proof of Aboriginal customary laws and traditions, there may be information which Aboriginal people will only be willing to give, if at all, on a restricted basis, and in order that justice can be done, steps may need to be taken so that, so far as possible, these wishes are respected. The question is whether additional powers, or legislative guidance in the exercise of existing powers, are necessary to achieve this. One submission to the Commission argued that:
evidentiary and procedural rules should be amended so as to allow for Aboriginal laws and practices and to protect their secrecy by establishing new categories of privileged evidence, providing for particular hearings in camera on the application of the Aboriginal parties concerned and providing added safeguards for confidentiality of evidence and material submitted to the courts.
Such arguments involve the two distinct questions: first, protecting the secrecy of evidence of customary laws, and secondly, the broader issue of a privilege against disclosing certain information. The first question is dealt with here, the second in the following section.
653. The Scope of Existing Powers. Judicial experience suggests that the problem of preserving secrecy or confidentiality of evidence can, to some extent at least, be resolved through the exercise of existing powers, including the powers
to regulate judicial procedure;
to hear evidence in camera;
to allow production of evidence on a restricted basis;
to grant protective orders including orders suppressing publication of proceedings.
At common law, a court has a discretionary power to exclude persons where the presence of such a person might intimidate witnesses, deter a party from seeking relief, prevent a witness giving evidence, involve the divulging of a secret process, endanger legitimate business interests, or endanger national security. These common law powers are reinforced or paralleled by statutory provisions dealing with summary and committal proceedings. On the other hand the public interest in maintaining a system of public justice is an exceptionally strong one, and these powers are accordingly exercisable only where this is really necessary in the interests of justice. And it is unclear to what extent the court in exercising its inherent power can regulate the conduct of non-parties outside the courtroom. Breach of such an order may only amount to contempt if the breach itself adversely affects the administration of justice.
654. The Use of Existing Powers in Customary Law Cases. The courts have shown considerable sensitivity in customary law cases. In R v Williams (with the prosecution’s consent) inappropriate persons were excluded from the court room and women were excluded from the jury. In R v Gudabi, all women were excluded from the court, an all male jury was (again with the Crown’s consent) empanelled and the court staff was composed only of men. An order was granted preventing publication of much of the proceedings. In a recent child abduction case in Alice Springs, Justice O’Leary ordered the suppression of all evidence. The matter proceeded, with the consent of the prosecution, by way of affidavit. A number of similar examples could be given.
655. Secrecy and Natural Justice. The powers illustrated in the previous paragraphs may not be available where their use threatens to result in a denial of natural justice to an affected party. The principle of natural justice is basic, both in courts and in administrative proceedings. But, as the Australian experience shows, although that principle may limit the use of judicial or administrative power to protect secret information, it does not exclude it. In the Daly River Land Claim it was argued that the use of material that had not been disclosed to the parties amounted to a denial of the opportunity to contradict adverse testimony, and that production of evidence on such a restricted basis was accordingly contrary to natural justice. Justice Toohey commented that:
As a general rule the Commissioner ought not to receive material which has not been made available to those participating in the enquiry which he is carrying out. And as a general rule those participating should be given the opportunity to dispute testimony and to make comments upon it. But there are other principles which call out for recognition. Some remarks of Lord Devlin, in a quite different context, are apt:
But a principle of judicial enquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial enquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded.
Justice Toohey concluded that secret matters adduced in the proof of Aboriginal customary laws might well be described as an extraordinary class of case. The revelation of men’s secrets to women or to uninitiated men could undermine traditional authority and the social stability of an Aboriginal community, as well as leading to the infliction of severe penalties on the informant. But it is necessary to balance these problems with fairness to the other party in a case. In a deportation matter before the Administrative Appeals Tribunal, Re Pochi and Minister for Immigration and Ethnic Affairs, the Government sought to exclude not only the public, but also the other party from part of the proceedings. The Administrative Appeals Tribunal Act 1975 (Cth) s 35(2) empowers the court to exclude the public and an applicant from any hearing. Justice Brennan noted that the Tribunal was bound by the rules of natural justice, and stated:
Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him — a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal.
He added that:
To exclude a party … it must appear that exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application. It is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party. This criterion is not easy to satisfy though it is possible to do so.
Similarly in the Arumungu Land Claim the Commissioner declined to exclude counsel for the objectors (including the Northern Territory) from the hearing of certain objections to disclosure of secret material, and indeed ordered that the material be disclosed to the Commissioner and counsel, though under strict conditions as to its confidentiality.
656. Conclusion: Powers to Ensure Secrecy. A court can only act on information that can be communicated to it and tested by the parties. It can be argued that, subject always to this basic constraint, the courts do now possess a range of powers to protect secret information divulged to them. However, it is desirable to confirm these powers in the Commission’s proposed legislation, to provide for their exercise on application by a party (and not only by consent) and to ensure that they extend to the protection of secret customary laws. Giving them legislative form may also help draw attention to the need to use these powers in appropriate cases. But there are two potential difficulties with such a recommendation, which need to be referred to.
Constitutional questions. The proposed power would include the power to exclude persons from the court, or even to sit in camera, where this is necessary to preserve secrecy and to allow testimony about Aboriginal customary laws to be given. However is Russell v Russell the High Court held that federal legislation could not require a State court to sit in camera (ie as a closed court), on the basis that this interfered with the structure of the court, something which, under s 77(iii) of the Constitution, the Commonwealth cannot do. Assuming that the proposed provision was enacted by the Commonwealth Parliament, it could be argued that it would be invalid for the same reason. However there is a clear difference between a provision which allows a court to sit in camera where, in the judge’s view, this is required in the circumstances, and a requirement that a court sit in camera whatever the circumstances. State courts already have power to exclude persons from the court, to make restriction orders , and to protect confidentiality in other ways. The proposed provision would be essentially of the same kind, and would not therefore alter the ‘structure’ or ‘constitution’ of the State court.
Consistency with the Sex Discrimination Act 1984 (Cth). A second question, which was referred to briefly in Chapter 23, is whether the recommended provision in the Commission’s Draft Bill could, consistently with the Sex Discrimination Act 1984 (Cth), permit a court or tribunal to make an order excluding persons of one sex from hearing or having access to evidence in a proceeding. 65 As outlined in para 654-6, both courts and tribunals have found it necessary to make orders of this kind. Indeed the Act has created difficulties on a considerably wider scale with recognition of the separate intellectual domains and ceremonial activities of men and women in traditional Aboriginal life. Exclusion of women from men’s ceremonies, or vice versa, might involve a breach of the Act, and would certainly constitute sex discrimination as defined in s 5. Orders (at least when made by administrative agencies, libraries or tribunals which are established by Commonwealth laws) restricting access to men’s or women’s secrets would probably contravene s 26 of the Act, in the absence of a specific statutory exclusion or an exemption from the Human Rights Commission under s 44. The only potentially relevant statutory exclusion, in most cases, would be s 37 (‘religious bodies’) and in particular s 37(d), which exempts:
(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
Although this may be capable of extending to some aspects of Aboriginal customary laws and traditions, it is unlikely that the notion of ‘religion’ in s 37(d) would be construed widely enough to cover the various situations outlined above. However the analogy with the practice of a religion is a persuasive one. It is undesirable to use the principle of sexual non-exclusiveness, embodied in s 5 of the 1984 Act, to exclude all official recognition of, or manifestations of, Aboriginal traditional culture which involve separate men’s and women’s domains. In the Commission’s view decisions to maintain separate men’s and women’s ritual, ceremonial and intellectual domains, in accordance with Aboriginal traditions and customary laws, should be a matter for Aborigines themselves. There should be a specific exemption in the 1984 Act to cover
· acts or practices engaged in by or on behalf of members of Aboriginal communities which are necessary to avoid injury to the susceptibilities of members of the community, as to the performance of their traditional religious, ritual or ceremonial obligations;
· restrictions imposed by courts or other bodies (including libraries) for the purpose of preserving the secrecy or confidentiality of, or restricting access to information about, the religious, ritual or ceremonial activities of Aboriginal communities, where the restriction is necessary to avoid injury to the susceptibilities of members of the community about the secrecy or confidentiality of those activities;
· the imposition of restrictions on entry to land for particular purposes or at particular times, where the restriction conforms to the customary laws of an Aboriginal community associated with the land.
A provision to this effect is incorporated in the Miscellaneous Provisions Bill contained in Appendix A. Such a provision would, among other things, provide a basis for evidentiary protections along the lines suggested earlier in this paragraph.
Accordingly, the legislation can properly confer, and should confer, specific power on courts and tribunals to protect secret information, where, on the balance of relevant considerations, this is necessary in the interests of justice. This would include power to restrict publication or the giving of evidence to persons of a particular sex.