Mortimer J
In this case the Court made suppression orders over certain expert reports submitted to the Court under s 37AF of the Federal Court Australia Act 1976 (Cth) (‘FCA Act’) on the ground set out in s 37AG(1)(a). Section 37AG(1)(a) allows the court to make a suppression order if necessary to prevent prejudice to the proper administration of justice.
Background
The underlying application was a claim for a determination of native title by the Gunaikurnai people over an area broadly encompassing Wilsons Promontory National Park. The proceedings were discontinued by consent in September 2019, however, social media posts were published which referred to expert reports that had been presented confidentially in the proceedings. First Nations Legal and Research Services (FNLRS) submitted an application for a suppression order to ensure the confidentiality of the reports. The respondents to the proceedings were the State of Victoria, the Commonwealth, Telstra and two others who contended competing native title interests of the land.
Standing
The fourth respondent, Dr Carolyn Briggs, submitted that FNLRS had no standing to bring the proceedings because they were not parties to the native title determination application which, in any case, had been discontinued. However, Her Honour accepted that the court had jurisdiction to make the orders sought per AWU15 v Minister for Immigration and Border Protection (No 2) [2019] FCA 2132 and FCA s 37AH(3). Furthermore, that FNLRS had sufficient interest in the making of the order per FCA s 37AH(1)(b) to give it standing, due to its role as the Victorian representative body under the NTA.
Suppression Orders
Mortimer J concluded that, at least to some extent, the contents of the reports had been discussed with, or between, Gunaikurnai claim group members. However, this was not inappropriate as the Gunaikurnai applicant acted in a representative capacity. Her Honour noted that the application of confidentiality rules in native title required some ‘realistic modification’ with reference to the decision in Hearne v Street [2008] HCA 36. However, Her Honour acknowledged that some of the contents of one or more of the expert reports may have been disseminated or disclosed outside the parties to the proceeding and outside the Gunaikurnai claim group. There was insufficient evidence to make the orders sought because of any conduct of a party, or of a third party. However, Her Honour found that the potential release of information risked undermining ongoing disputes over who are the ‘right’ people for Wilsons Promontory.
Conclusion
Mortimer J was ultimately satisfied that further orders were necessary in the interests of justice to prevent creating a disincentive to people asked to provide information in future proceedings.