Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales (No 2) [2019] FCA 1797

New South Wales
Federal Court
Legislation considered: 
37AG Federal Court of Australia Act 1976 (Cth)
s 87 Native Title Act 1993 (Cth)

Robertson J


On 30 April 2019, Robertson J made a determination of native title by consent, recognising the non-exclusive native title rights and interests of the Bundjalung People: Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales (Nicholls) (see Related Content).

Part of the material filed in support of the application was an affidavit of Ms Alexandra Donaldson, affirmed on the 9 April 2019. The affidavit expressed Ms Donaldson’s opinion as to who constituted the Bundjalung People of Byron Bay, those peoples’ law and custom and connection to country. The evidence was considered and accepted by Robertson J in Nicholls. 

The present case concerned an application made on 17 July 2019, by a third-party, Mr Stephen Hall of Brunswick Valley Historical Society Inc. (BVHS), seeking a copy of the affidavit to be added to BVHS's archive. The applicant (representatives of the Bundjalung People) opposed the request for the following reasons:

  • BVHS was not a party to the proceedings;
  • It, along with a larger number of people, may not have sufficient context to properly consider the affidavit evidence.  
  • If the BVHS would like to “better address queries about local Aboriginal history”, BVHS should contact the the Bundjalung of Byron Bay (Arakwal) Aboriginal Corporation (Corporation) and developing a relationship with the native title holders concerned, or by referring those seeking information about local Aboriginal history to the Corporation.

Legal Issue

The Court reasoned that, outside of circumstances where evidence is confidential, privileged or the subject of a non-publication order, access to material read in support of the determination should be accessible to the public, including Mr Hall of BVHS.

His Honour did not consider that there is any general principle, whether in proceedings under the Native Title Act 1993 (Cth) or otherwise, whereby access to material deployed in open court should be denied to a non-party, at least where allowing access would not impose a substantial and disproportionate burden on the limited resources of the Court.

As the affidavit had been admitted into evidence and was not confidential, restricted from publication, or the subject of a claim for privilege the Court's usual practice is to release material which has been used in open court or otherwise used by a judge in equivalent circumstances.


Robertson J granted Mr Stephen Hall of the BVHS access to the affidavit in question.