Jango v Northern Territory of Australia [2003] FCA 1230

FEDERAL COURT OF AUSTRALIA

Jango v Northern Territory of Australia [2003] FCA 1230

NATIVE TITLE – Application seeking orders for a regime for "male gender restricted evidence" and "female gender restricted evidence" – sufficient evidence to warrant taking cultural and customary concerns into account, pursuant to s 82(2) of the Native Title Act 1993 (Cth) – whether other parties would be prejudiced "unduly" by orders sought Federal Court of Australia Act 1976 (Cth), ss 17, 50 Native Title Act 1993 (Cth), ss 50(2), 61(1), 82 Native Title Amendment Act 1998 (Cth)

Wandarang, Alawa, Marr & Ngalakan Peoples v Northern Territory of Australia (2000) 104 FCR 380 cited. Western Australia v Ward (1997) 76 FCR 492 applied. Sampi v Western Australia [2001] FCA 620 cited. JOHNNY JANGO & ORS v NORTHERN TERRITORY & ORS DG 6023 of 1998 SACKVILLE J YULARA 31 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY DG 6023 OF 1998

BETWEEN: JOHNNY JANGO

APPLICANT

AND: NORTHERN TERRITORY OF AUSTRALIA

FIRST RESPONDENT

GPT MANAGEMENT LIMITED

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 31 OCTOBER 2003

WHERE MADE: YULARA

THE COURT ORDERS THAT: 1. Orders 3, 4 and 5 are to apply to male gender restricted evidence. 2. "Male gender restricted evidence" means such information relating to Aboriginal law and custom as may be identified, recorded in written form or given in oral evidence at the hearings to take place on 3, 4 and 5 November 2003 in accordance with the Annotated Hearing Schedule and Planning Notes dated 28 October 2003, which information may not be disseminated to: (a) women; (b) uninitiated men; (c) non Aboriginal men; or (d) children. 3. The following people only may be present at the hearing when any male gender restricted evidence is given as oral evidence or may read any male gender restricted evidence or any transcript thereof: (a) any male party; (b) any male expert engaged by a party for the purpose of providing advice about such matters; (c) any male counsel, male solicitor or necessary male staff of a party; and (d) the Judge and those male staff as directed by the Judge. 4. Male gender restricted evidence must not be divulged to any person not present at the hearing other than: (a) male parties; (b) male experts engaged by a party for the purpose of providing advice about such matters; (c) male counsel, male solicitors or necessary male staff of a party; and (d) a Judge and those male staff of a Judge as directed by the Judge. 5. Male gender restricted evidence: (a) shall be recorded and transcribed by a man; (b) shall, along with any audio and computer records of the evidence, be kept separate from the general transcript and shall be printed on coloured paper; (c) shall have a covering sheet marked: "'Gender Restricted Evidence' – This transcript records evidence and submissions in relation to matters of Aboriginal law and custom which by Order of the Court must not be viewed by any person other than: (i) any male party (ii) any male expert engaged by a party for the purpose of providing advice about such matters; (iii) any male counsel, male solicitor or necessary male staff of a party; and (iv) the Judge and those male staff as directed by the Judge." 6. Orders 8, 9 and 10 are to apply to female gender restricted evidence. 7. "Female gender restricted evidence" means such information relating to Aboriginal law and custom as may be identified, recorded in written form or given in oral evidence at the hearing to take place on 3, 4 and 5 November 2003 in accordance with the Annotated Hearing Schedule and Planning Notes dated 28 October 2003, which information may not be disseminated to: (a) men; (b) young women; (c) non Aboriginal women; or (d) children. 8. The following people only may be present at the hearing when any female gender restricted evidence is given as oral evidence or may read any female gender restricted evidence or any transcript thereof: (a) any female party; (b) any female expert engaged by a party for the purpose of providing advice about such matters; (c) any female counsel, female solicitor or necessary female staff of a party; and (d) the Judge and those female staff as directed by the Judge. 9. Female gender restricted evidence must not be divulged to any person not present at the hearing other than: (a) female parties; (b) female experts engaged by a party for the purpose of providing advice about such matters; (c) female counsel, female solicitors or necessary female staff of a party; and (d) a Judge and those female staff as directed by the Judge. 10.Female gender restricted evidence: (a) shall be recorded and transcribed by a woman; (b) shall, along with any audio and computer records of the evidence, be kept separate from the general transcript and shall be printed on coloured paper; (c) shall have a covering sheet marked: "'Gender Restricted Evidence' – This transcript records evidence and submissions in relation to matters of Aboriginal law and custom which by Order of the Court must not be viewed by any person other than: (i) any female party (ii) any female expert engaged by a party for the purpose of providing advice about such matters; (iii) any female counsel, male solicitor or necessary male staff of a party; and (iv) the Judge and those female staff as directed by the Judge." 11. Any restricted gender evidence given at the hearings to take place on 3, 4 and 5 November 2003 shall be subject to the Protocol referred to in paragraph 15 of the Judgment. 12. At the conclusion of the proceedings, including any appeal, all gender restricted transcript or other records of such transcript including computer disk or tapes, shall be delivered up by the parties to the solicitors for the applicants, for destruction. 13. The Commonwealth have liberty to apply on 72 hours notice to modify the terms of these orders. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.