At the start of Friday’s hearing of an application for leave to appeal Australia’s first contested determination of compensation for loss of native title, Nettle J made it clear that he and Gordon J saw the topic as clearly deserving attention from the High Court:
Ladies and gentlemen, our present inclination, which is plainly tentative, is to think that the matter raises questions of principles of general importance which would warrant the grant of special leave.
Not only did Western Australia’s Solicitor-General Peter Quinlan fail to convince the Court that the case was a poor one for testing those principles (because the Northern Territory didn’t rely on a statutory rule limiting compensation), but he seemingly opened up a major new issue for the Court to consider: whether extinguishing native title is a deprivation of property for the purposes of the Constitution’s requirement of just terms compensation. The Commonwealth’s counsel Stephen Lloyd cited that issue (which he said would likely attract interventions from every state and territory) as well as the twenty regular appeal grounds now before the Court as reasons why the usual limit of twenty pages per party for submissions on appeal should be lifted to eighty or more, and why the full court hearing would take some four or five days. Calling the latter estimate ‘a little alarming’, Nettle J raised the page limit to fifty and told the parties to find a way to limit the hearing to three days.
Buried in the transcript is a further, relatively minor, but quite unusual issue the High Court will now encounter. Lloyd drew the Court’s attention to:
some secret men’s evidence that was confidential before Justice Mansfield. Different orders were made in relation to that to go to the Full Court which only allowed female judicial officers to see it – no other females have been allowed to see it so, no other court staff or the like.
Similar evidence appeared in much earlier proceedings before (Mark) Weinberg J in the same matter:
With the consent of all parties, orders were made that enabled the evidence of [AG] and [JJ] that related to “high order ritual practice” to be given on site, in closed court, at Timber Creek. That evidence was given on 9 March 2005 in the presence of a number of male claimants, and male Court staff. It was recorded by a male transcript recorder, and only male counsel and solicitors were permitted to be present…. The Court was told of locations which women were not permitted to know anything about, and of the use of sacred objects that were secret, and kept from them. The Court was taken to various sites that had not been the subject of the earlier site visits. Evidence was given of the consequences that would befall anyone who revealed these secrets to women. The various rituals and ceremonies were said to date back to the Dreamtime.
Justice (John) Mansfield expressly relied on that and similar evidence when awarding the claimants $1.3M solatium (compensation for non-economic harm) for their loss of native title:
[W]ithout going into the evidence, the ritual described, and the need for its secrecy, are very valuable to the native title holding community. There was evidence in this proceeding of a place that is no longer a secure ritual ground, and evidence in the earlier proceeding of another place that is no longer secure for ritual. [JJ] gave evidence as to why the area could no longer be used. Chris Griffiths gave evidence as to why the place remains important.
These findings also featured in the Full Court’s approval of that award (see ), but the those three judges only saw a redacted version of the evidence because of the presence on the bench of (Deborah) Mortimer J. In the special leave hearing, Sturt Glacken, counsel for the native title claimants, forecast that the High Court would follow the same approach:
[I]n the Full Court an order was made which allowed Justice Mortimer to see an abbreviated version of the material. Her Honour did not see the whole version. The court was given an abbreviated version of the material which both sides accepted was sufficient to deal with the matter…
His caveat that the Northern Land Council will ‘need to speak to the men concerned who are not with us’ prompted Nettle J’s response that ‘[i]f it becomes a problem, an application can be made to a single Judge as quickly as possible’.
It seems fairly clear (though not wholly certain) that, whatever the gender composition of the High Court bench that hears the case, every High Court judge will hear the exact same evidence, albeit only an abbreviated version of the evidence that went before Mansfield J at the trial. While that is likely uncontroversial, there may be more difficulty with the other orders made in the Federal Court, which Lloyd said:
only allowed female judicial officers to see it – no other females have been allowed to see it so, no other court staff or the like.
This seems to have myriad implications for the High Court, including that the abbreviated evidence will not be in the Court’s public file; that any discussions of the evidence in the hearing will not be published in transcripts or video; that potentially the public (or at least the female public) and any female court staff will be excluded from the court room during any discussion of the evidence; that female administrative staff (including Phillipa Lynch, the Court’s Chief Executive and Principal Registrar) and any female associates to the judges will not see the evidence; and that female lawyers for the parties will not be given access to it (including presumably the two female lawyers – out of ten – who appeared at Friday’s hearing.) The latter point raises a question that went before the High Court twenty years ago, after the Federal Court preferred an approach to ‘gender restricted evidence’ that required parties to obtain same-sex lawyers when such evidence was heard over a ruling that such a limit would breach parties’ rights to lawyers of their choice. Justices Toohey, Gummow and Hayne refused special leave, observing:
These are matters best left to the courts below unless the procedures necessarily offend some basic principle.
It is unlikely that this interesting question will be expressly revisited in the present appeal, given the many other issues the Court will have on its plate.