Beaumont J
In this case, the Court made orders excluding an applicant and two unrepresented Indigenous respondents from hearing or viewing evidence about certain sacred sites. It was accepted that knowledge about their significance is held only by certain people and is kept in confidence. Furthermore, that only certain elders have authority to permit others to enter these sites and if those who were said to be from other areas were present at the hearing they would be at risk of suffering an illness.
Under s 17(1) of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’) the Court’s jurisdiction is to be exercised in open court except where otherwise authorised. Under FCA Act s 17(4), the Court may exclude the public or specified persons where satisfied that their presence would be contrary to the interests of justice. Furthermore s 82(2) of the Native Title Act 1993 (‘NTA’) permits the Court to ‘take account of the cultural and customary concerns of Aboriginal peoples … but not so as to prejudice unduly any other party to the proceedings’.
Beaumont J acknowledged that, in general, a respondent should be permitted to hear evidence in order to have an adequate opportunity to present his or her own case. However, with regard to the applicant, His Honour was not persuaded that this was necessary in the circumstances, as the applicant made no claim over the Sites. With regard to the two respondents, their interests in opposing the claims were considered as yet undefined and therefore greater weight was given to the confidential nature of the evidence.
The Court directed how that evidence must be dealt with, including that it be marked ‘restricted evidence’, that no copies of the transcript be made and that the evidence must not be divulged to any person not entitled to be present at the hearing of the evidence.