Nettle J
Nettle J made a suppression order pursuant to ss 77RE(1)(b)(i) and 77RG(4) of the Judiciary Act 1903 (Cth) preventing publication or disclosure of a certain gender restricted evidence in order to prevent prejudice to the proper administration of justice.
Reasons
The order concerned certain reports and transcripts containing restricted men’s evidence. In relation to the evidence Nettle J provided:
[3] The integrity of their restricted domain is sustained through a structured system where knowledge is controlled by some and allocated to others according to customary rules for its dissemination. Failure to comply with those rules is believed to result in exposure to harmful and potentially fatal spirituality.
The Court noted that knowledge of the restricted material was not necessary in order to comprehend the Court’s reasons in Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 on why or how the Court formulated the amount of compensation payable nor was there any other legitimate interests which the public might have in gaining access to the restricted volume. His Honour was also concerned that failure to make the orders ‘would have the potential to inhibit other Aboriginal men in giving evidence regarding gender restricted knowledge in future compensation proceedings’ [7].
His Honour was satisfied that the order sought, for a period of ten years, was not longer than necessary to achieve the purpose of the order.
Orders
The Court ordered
Publication and disclosure of the material contained in the volume titled "Commonwealth's Book of Further Materials Volume Three (Gender Restricted) (Pages 608-662)" be restricted in the following manner:
(a) the gender restricted volume and any copies shall be kept separate and sealed in an envelope or bag marked "Evidence Restricted by Orders of the Court made on 30 May 2018 in Appeal Proceedings D1 of 2018, D2 of 2018 and D3 of 2018";
(b) any copy of the gender restricted volume is not to be available for inspection without an order of a Justice of the Court, any such order to be made after giving written notice to the parties in Appeal Proceedings D1 of 2018, D2 of 2018 and D3 of 2018;
(c) the gender restricted volume may be accessed by, and its contents disclosed to:
(i) a Justice of the Court hearing any application in relation to access to the gender restricted volume, including the application for these orders and any application mentioned in Order 1(b) and Order 2;
(ii) any Associate or other Court staff as directed by a Justice mentioned at (i);
(iii) any male counsel or legal representative of any party or intervener in the appeals in proceedings D1 of 2018, D2 of 2018 and D3 of 2018, or of any applicant or other party to an application mentioned in Order 1(b) and 3;
(d) any male counsel or legal representative mentioned in Order 1(c)(iii) may disclose the contents of the gender restricted volume to any male party or male officer of a party, other male counsel or legal practitioner, or male expert anthropological expert witness engaged by a party, for the purpose of any application mentioned in Order 1(b) and 3;
Subject to any further order, the period for which these orders will operate is 10;
Liberty is reserved to any party or intervener to the appeal proceedings or any person listed as a potentially interested person to apply by summons and supporting affidavit for an order varying Orders 1 and 2; and
There be no order as to costs.