Jowett, Tina --- "Gender Restricted Evidence: State of WA v Ben Ward" [1998] IndigLawB 20; (1998) 4(9) Indigenous Law Bulletin 19

Gender Restricted Evidence:

State of WA v Ben Ward

Federal Court, Sydney

Hill, Branson & Sundberg JJ

Unreported

WAG 57 of 1997

8 July 1997

Casenote by Tina Jowett

Note: any opinions expressed in this article do not necessarily represent the views of the Crown Solicitor's Office.

Ben Ward v State of Western Australia (the M&G case) involved a native title claim (which is still continuing) by the Miriuwung and Gajerrong people to land in the Kimberley region of Western Australia. At first instance, Lee J requested that the parties to the proceedings make submissions regarding the presentation of evidence. These submissions involved argument as to the presentation of gender restricted evidence. Accordingly Lee J made Orders on 11 April 1997 (see below). These orders were challenged by the respondents and the appeal was heard by the full Bench of the Federal Court.

The Federal Court held that the Orders made by Lee J were within power and appropriate in the circumstances.[1]

Hill and Sundberg JJ held that it was within the powers of the Court to ensure that justice be done and be seen to be done and, if the integrity of the judicial process was to be protected, the Court must have power to prevent a particular legal practitioner appearing for a party.

Pursuant to s50 of the Federal Court of Australia Act 1976 (Cth) ('the FCA'), Lee J had made the following Orders concerning evidence relating to gender restrictions:[2]

'(6) Occasions will arise by reason of traditional laws and customs which prevent women and men respectively speaking about certain matters. For example, matters going to law, ceremony and ritual, in the presence of persons of the opposite gender and the communication of the details of such matters to persons of the opposite gender.



(7) In those cases where the taking of evidence should be restricted for these reasons, it is to be understood that restrictions will apply to both the circumstance in which the evidence is taken and recorded, and the subsequent sharing, communication or dissemination of the evidence or record of the evidence produced.



(8) In the event that a party seeks restrictions... notification of the restrictions sought and the basis for the restrictions is to be given to the Court and other parties no later than 28 days before the date the evidence is to be heard ...



...

(10) Each party is entitled to be represented at a hearing of gender-restricted evidence by no more than two lawyers of the same sex as the witnesses.



(11) Each party is entitled to have present at a hearing of 'gender-restricted' evidence one anthropologist of the same sex as the witnesses for the purpose of assisting the party's lawyers.



(12) Only if cause has been shown and leave obtained ...may –

(a) the party's lawyers and anthropologist who attend a hearing of 'gender restricted' evidence divulge information about the evidence ...regardless of gender, or

(b) the transcript of 'gender restricted' evidence be available to the party's other lawyers or anthologist regardless of gender;

(13) A transcript of evidence or other record made of ... evidence restricted on the basis of gender ... may not be disseminated to any persons other than to counsel, instructing solicitors and anthropologist..., such persons being of the gender required by the aforesaid restriction unless leave has been obtained from the Court in the same terms as described in item 7.'

Hill and Sundberg JJ stated that two policy considerations will govern the exercise of the power of the Court to deny access to evidence in a particular case. The first is the concern of the Court to promote and ensure open justice and the second is the requirement, as a matter of procedural fairness, that a party to a proceeding will have prima facie rights to access all documents discovered or produced at trial. Prejudice to the administration of justice should be the dominant criterion taken into account when considering making an order of this type.[3] The Court must consider: the interests of the parties, the effect that disclosure may have, and the advantages or disadvantages an order may introduce. These considerations should be weighed against the public interest in open justice. Only when the private interests outweigh the public interests will it be appropriate for an order to be made restricting publication of the evidence to a particular class of persons.[4]

The trial judge must evaluate the risk to the person giving evidence both culturally and spiritually. If the interests of justice require evidence to be given only to persons of a particular gender the Court must be careful to ensure that justice is done not only to the applicants, but also to the other parties to the litigation.

Branson J gave a separate, but concurring, judgment.

The M&G case clarifies the law relating to gender restricted evidence in native title claims in the Federal Court.[5]

As more native title claims proceed to court, applications regarding traditional gender restricted evidence will most probably be made. The case indicates that a court will have to be provided with evidence that satisfies the trial judge that the cultural concerns of the private interests of the Aboriginal claimants outweigh the public interest in the open administration of justice. Providing this type of evidence in detail could compromise the evidence sought to be restricted.[6]

Tina Jowett is a Solicitor in the Constitutional and Native Title Practice Group, NSW Crown Solicitor's Office.

[1] Hill and Sundberg JJ suggested some minor amendments to the Orders.

[2] Under section 50 of the FCA the Court may make an order restricting publication of evidence in order to prevent prejudice to the administration of justice or the security of the Commonwealth.

[3] Section 50 of the FCA.

[4] Australian Broadcasting Commission v Parish (1980) 29 ALR 228 considered.

[5] In the M&G Case, the Full Bench effectively overruled the reasoning of Olney J in the Croker Case, Mary Yarmirr v NT, (1997) 143 ALR 687. The applicants had sought to call 'gender restricted evidence', which would have involved the exclusion of Counsel, Solicitors, parties and members of the public of one gender. Their application was refused, on the grounds that the material presented was not persuasive enough to support the application, under the legislation as it stood.

[6] Special leave to appeal was refused by the High Court on 20 October 1997. Justice Toohey stated:

'These are matters best left to the courts below unless the procedures necessarily offend some basic principle. The principle sought to be established was that it is an essential element of procedural fairness that a party may always have one representative privy to all evidence given in the case .... the Court is not persuaded that any such principle, if it exists, has been offended.'