Sampi v State of Western Australia (No 5) – Variation of Gender Restricted Evidence Suppression Orders

Original Word Document (120.9 KB) Federal Court of Australia

Sampi v State of Western Australia (No 5) [2026] FCA 517

| File number(s): | WAD 49 of 1998 |

| Judgment of: | MORTIMER C J |

| Date of judgment: | 27 April 2026 |

| Catchwords: | NATIVE TITLE – application for variation of suppression orders over gender restricted evidence given at trial – variation sought to permit RNTBC to access and control gender restricted evidence – suppression orders as made no longer necessary to prevent prejudice to the administration of justice – orders sought are appropriate and within the power of the Court to make – application granted |

| Legislation: | Federal Court of Australia Act 1976 (Cth) ss 17(4), 23, 50 (repealed), Pt VAA

Native Title Act 1993 (Cth) ss 61, 82

Federal Court Rules 2011 (Cth) rr 1.32, 39.05(c)

Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) reg 3

Statewide Treaty Act 2025 (Vic)

An Act respecting First Nations, Inuit and Métis children, youth and families 2019 s 8(c) (Canada)

Indigenous Languages Act 2019 s 5(g) (Canada)

United Nations Declaration on the Rights of Indigenous Peoples Act 2021 (Canada)

United Nations Declaration on the Rights of Indigenous P eoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) |

| Cases cited: | Booth on behalf of the Gunaikurnai People Claim Group v State of Victoria (No 3) [2020] FCA 1143

Booth on behalf the Gunaikurnai People Claim Group v State of Victoria [2022] FCA 1395

Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651

Maloney v The Queen [2013] HCA 28; 252 CLR 168

Sampi on behalf of the Bardi and Jawi People v State of Western Australia (No 2) [2010] FCAFC 99

Sampi on behalf of the Bardi and Jawi People v State of Western Australia (No 3) [2005] FCA 1716

Sampi v State of Western Australia (No 3) [2005] FCA 1716

Sampi v State of Western Australia (No 2) [2001] FCA 620

Sampi v State of Western Australia [2001] FCA 619

Sampi v State of Western Australia [2005] FCA 1716

Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551

Dziedzic A and McMillan M, “Australian Indigenous Constitutions: Recognition and Renewal” (2016) 44(3) Fed L Rev 337

Galloway K, “Victoria’s Treaty Bill and the Evolution of Lawmaking in a Westminster Democracy” (2025) 50(4) Alt LJ 249

Wood C, “Protecting Indigenous Rights at Home: A Comparative Analysis of the Way Forward for Domestic Implementation of the United Nations Declaration on the Rights of Indigenous People” (2020) 27 Aust ILJ 77 |

| Division: | General Division |

| Registry: | Western Australia |

| National Practice Area: | Native Title |

| Number of paragraphs: | 76 |

| Date of last submission/s: | 24 April 2026 |

| Date of hearing: | 8 April 2026 |

| Counsel for the Interlocutory Applicant: | Mr P Coleridge |

| Solicitor for the Interlocutory Applicant: | Kimberley Land Council |

| Counsel for the First Respondent: | Mr I Repper |

| Solicitor for the First Respondent: | State Solicitor’s Office |

| Counsel for the Second Respondent: | Mr D O’Leary SC |

| Solicitor for the Second Respondent: | Australian Government Solicitor |

ORDERS

| WAD 49 of 1998 |

| BETWEEN: | PAUL SAMPI

First Applicant

JOE ROCK

Second Applicant

FREDDIE BIN SALI (and others named in the Schedule)

Third Applicant | |
| AND: | STATE OF WESTERN AUSTRALIA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent | |

| order made by: | MORTIMER C J |
| DATE OF ORDER: | 27 April 2026 |
THE COURT NOTES THAT:

A. The Bardi and Jawi Niimidiman Aboriginal Corporation RNTBC is a registered native title body corporate that holds in trust for the Bardi and Jawi people the native title rights and interests the subject of the determination of the Full Federal Court in WAD188/2006, Sampi on behalf of the Bardi and Jawi People v State of Western Australia (No 2) [2010] FCAFC 99 (on appeal from WAD 49/1998, Sampi v State of Western Australia [2005] FCA 1716).

THE COURT ORDERS THAT:

1. With effect from the date of making this order and pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and Rule 39.05(c) of the Federal Court Rules 2011 (Cth), the following orders are set aside:

(a) the Orders of Beaumont ACJ made 30 April 2001;

(b) the Orders of Beaumont ACJ made 17 May 2001, as:

(i) part suspended (with respect to Order 2(b) only) by Beaumont ACJ on 30 May 2001;

(ii) varied by Beaumont J on 5 March 2003;

(iii) varied by French J on 25 June 2003;

(iv) extended by French J on 3 March 2004;

(v) extended by French J on 11 July 2005;

(vi) further varied by French J on 31 October 2006; and

(vii) further varied by French J on 7 December 2006;

(c) the Orders of French J made 1 July 2003, as:

(i) extended by French J on 11 July 2005;

(ii) extended by French J on 14 December 2005;

(iii) extended by French J on 31 October 2006; and

(iv) extended by French J on 7 December 2006.

1. From the date of these Orders and pursuant to ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act, the evidence given in any sessions of men’s gender restricted evidence held in this proceeding on 25, 26, 28 and 29 June 2001 and 2 July 2003, including those portions of the transcript of the proceeding and any documents which record that evidence, must not be disclosed except in accordance with these Orders.

2. Order 2 and, to the extent that any orders not specified in Order 1 have been made in this proceeding restricting access to, or the disclosure of, male gender restricted evidence, those orders, do not apply to:

(a) the RNTBC, which may store, access, use, and disclose the gender restricted evidence to another person, on such conditions and for any purpose deemed appropriate by the RNTBC;

(b) any person acting within the terms of an authorisation from the RNTBC, which authorisation may be granted for any purpose and subject to any conditions considered appropriate by the RNTBC; and

(c) any male employee of the K imberley L and C ouncil to access, review, and provide to the RNTBC, any gender restricted evidence held by the KLC or obtained from the Court in accordance with Orders 4 and 5.

1. The RNTBC has leave to inspect and obtain a copy of:

(a) all documents on the Court File filed by the Applicants in WAD 49/1998; and

(b) all transcripts of the evidence given for the Applicants in WAD 49/1998.

1. To the extent necessary for the Court to provide the KLC as the legal representatives of the RNTBC with the materials the subject of the grant of leave in Order 4, Order 2 does not prohibit:

(a) male employees of the Court from accessing and reviewing the evidence the subject of Order 2; and/or

(b) transmitting copies of that evidence to any male employee nominated by the KLC by email or other digital means.

1. The operation of s 37AK of the Federal Court of Australia Act is, in respect of the materials held by the Court and affected by these orders, modified so as to apply only to male court officials.

2. Pursuant to Rule 1.34 of the Rules, the Court dispenses with the requirement in Rule 17.01(2) of the Rules that the RNTBC serve the interlocutory application dated 5 November 2025 on any party other than:

(a) State of Western Australia; and

(b) Commonwealth of Australia.

8.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER CJ:

Background

1 In 1995, a number of members of the Bardi and Jawi People as the applicant constituted for the purposes of s 61 of the N ative T itle A ct 1993 (Cth) made an application for a determination of native title. The trial began before Beaumont J, and the proceeding was re-allocated to French J (as his Honour then was). On 30 November 2005, French J determined that native title rights and interests existed in relation to parts of the area the subject of the application: Sampi v State of Western Australia (No 3) [2005] FCA 1716. An appeal by the Bardi and Jawi was allowed in part, with the matter being finally resolved by orders made on 18 August 2010: Sampi on behalf of the Bardi and Jawi People v State of Western Australia (No 2) [2010] FCAFC 99.

2 At trial there was evidence about Ngulungul, which the lead applicant in the proceeding, Mr P Sampi, described in an affidavit as meaning knowledge that is “secret and important and belonging to initiated men”. His grandson, Mr Andrew Sampi, more recently described (also by affidavit) “ Ngulungul things” as “our secret men’s business”.

3 In the course of the proceedings, various orders were made restricting how the Ngulungul evidence was adduced, who could be present, and how the evidence, once adduced, should be preserved and handled. Some of the parties referred to these as the G ender R estricted E vidence o rders, and I will do the same. The reason for these orders originally related to requests for non-Aboriginal anthropologists to access the transcript of evidence, without having been present when the evidence was given. Justice Beaumont was persuaded that this was not appropriate, and the terms of the suppression orders therefore related initially to limiting disclosure of the evidence to people who were present when it was given. I return to this issue below.

4 However, some 15 years later, the effect of those orders is that, today, the Bardi and Jawi, and the K imberley L and C ouncil (as both the native title representative body and the body whose lawyers acted for the Bardi and Jawi during the determination application), are prevented from accessing or disclosing that evidence, even though the native title determination is finalised.

5 By interlocutory application dated 7 November 2025, the Bardi and Jawi Niimidiman Aboriginal Corporation RNTBC asked the Court to vary those orders, in substance to return control of this material to the Bardi and Jawi, in accordance with their traditional law and custom about who should control access to, and disclosure of, this knowledge.

6 I am comfortably persuaded that the Court has power to make orders to rectify this situation, and that it is appropriate to do so. As a consequence of discussions during the hearing, the parties submitted a form of proposed orders which differed from the form sought in the interlocutory application. I explain below why, in substance, and with some changes, those orders are a preferable approach.

7 The interlocutory application was served on the State of Western Australia and the Commonwealth. The application is novel, so the State and the Commonwealth were required to file written submissions on whether the orders sought by the RNTBC are within the power of the Court, and appropriate in the circumstances. The Court also has before it the written submissions of the RNTBC, as well as submissions from the KLC, which sought to be heard as a non-party during case management. The Court is grateful to the parties and to the KLC for their submissions. In general terms, the parties agree that it is within the power of the Court and appropriate in the circumstances to make the orders sought by the RNTBC.

The GRE ORDERS

8 The two sets of principal orders were made by Beaumont J on 17 May 2001 and French J on 1 July 2003. Both these sets of orders related to the hearing of gender restricted evidence in the proceeding. The 1 July 2003 orders were required because the proceeding had been reallocated to French J before the hearing was completed. Between those dates there were a number of other orders varying the orders initially made by Beaumont J.

9 The 17 May 2001 orders followed on from an initial set of orders made on 30 April 2001, dealing with who could be present while certain evidence, described in the orders as “gender restricted (male only) evidence”, was to be given on country in the proceeding. The trial was fixed to commence on 8 May 2001. Justice Beaumont gave reasons for the 30 April orders (Sampi v State of Western Australia [2001] FCA 619), accepting the evidence of Mr P Sampi about why the orders were necessary. His Honour said at [7]-[8]:

This application is made in respect of several categories of evidence (collectively hereafter referred to as “the Gender-Restricted Evidence”) as follows:

(i)    the evidence which is described in the affidavit of the first applicant, affirmed 28 March 2001, as follows:

“2. We want to give some evidence which belongs to men only. We want the judge to understand that no women or children can know about this.

1. Bardi and Jawi Law says that some things can only be talked about by initiated men. These things are not open for just anybody to hear or talk about. It breaks our Law if that happens. We call these things ngulungul which means secret and important and belonging to initiated men.

2. Because the judge is a big Law man, and other white Law men are talking about our country, we thin [k ] we should talk to them about some of this ngulungul business.

3. The ngulungul things we want to talk about show how we truly belong to this country, land side and sea side from the beginning.

4. We cannot talk about these things if women or children will hear them, see them, or read about them. If that happens, we could get sick and die because our Law is very dangerous. We cannot break our Law.

5. We know that old anthropologists have written down some of our ngulungul things before. We think this is wrong. The things they have written about cannot be spoken in front of women and children. We know whitefellas think a book or something like that is open to anybody. But these things I am talking about are not open to women and kids in our Law. We must keep them secret.

6. In our Law, we can only talk about ngulungul things with other men face-to-face. We need to see those men close up when we talk to them about ngulungul things. Those men must hear it from us, not from a book or paper.

7. We do not want our ngulungul things written down before they are told to the judge, because we have to protect our Law.

8. Also it is important for men to see the country we are talking about.

9. We want Geoff Bagshaw, who knows about our Law and who knows what old anthropologists have put in books, to let the judge know what people should not talk about in public. We hope this will help everybody.

10. We also want Geoff Bagshaw to tell the judge names of our Bardi and Jawi families who have died not too long ago. Our Law says that we are not allowed to speak these names for many years. Hearing those names will hurt people and make them feel sorry.”

(It should be recorded here that Mr Sampi was not challenged on his affidavit; and that, accordingly, I propose to accept this evidence for present purposes.)

10 Two respondents sought leave to disclose the gender restricted transcript to others and Beaumont J stood this issue over.

11 It was this issue that came back before Beaumont J on 17 May 2001, in relation to two anthropologists retained by these respondents. His Honour was faced with a submission that these anthropologists should be able to read the transcript rather than attending in person.

12 In his reasons, Beaumont J relied again on Mr P Sampi’s affidavit that I have extracted above. However, he also stated (Sampi v State of Western Australia (No 2) [2001] FCA 620 at [6]) that the Court must be “practical and realistic in exercising its judicial discretion”, while also recording his difficulty in determining this application without having heard the content of the evidence (at [8]). Nevertheless, Beaumont J determined that it was in “the interests of justice that some strictly controlled disclosure should be made to the two anthropologists nominated”.

13 The 2001 orders reflect this conclusion. In their material parts, they provided for how the transcript of the evidence, and the audio and electronic records of the evidence from which the transcript is made, were to be separated from the general transcript and records. The orders then prohibited disclosure and copying of the transcript, save to people who were present and except for two named anthropologists. The orders also required that at the conclusion of the proceeding the records of evidence were to be delivered up to the KLC, as solicitors for the applicant.

14 The 2003 orders made by French J were in similar terms.

15 The existence of quite a number of varying orders, combined with the evidence before the Court on this application that the parties were unclear whether they had in fact ascertained the complete set of variations to the two principal sets of orders, has informed the view I have taken of what is the appropriate course for the Court to take on this application, in terms of what kind of orders should be made. So too has the fact that a breach of any suppression orders could constitute a contempt of court.

16 The material parts of the 2001 orders are as follows:

1.    The transcript of the evidence, and the audio and electronic records of the evidence from which the transcript is made, are to be separated from the general transcript and records. The transcript is to be printed on paper of a different colour from that of the general transcript, but paginated chronologically with the general transcript. The transcript must not be transmitted or otherwise dealt with by email.

2.    The transcript of evidence is to have a covering sheet clearly marked with the date of the hearing at which the evidence was given and the words "Gender Restricted Evidence - This transcript records evidence by Aboriginal men concerning matters that by Aboriginal tradition must not be revealed to persons other than initiated adult males.

This transcript must not be viewed by persons other than –

(a)    those present at the time of this hearing; and

(b)    Professor Howard Morphy and Mr Paul Greenfeld, being, respectively, the second and fourth respondents’ expert anthropologists, provided always: (i) that counsel for those respondents respectively shall first have certified in writing, filed with the Court that, in his opinion, disclosure of that transcript or part of that transcript is necessary at that stage for the purposes of the proper conduct of the case of that respondent; and (ii) that such expert has first filed with the Court an undertaking to the Court that the evidence in that transcript will not be divulged to any person not present at the hearing of the evidence and be not used for any purpose other than for the purpose of this proceeding or any appeal.

…

1.     Save for the copies for the Court and for each person present at the hearing of the evidence (which copies will be numbered by the Registry's remote hearings coordinator and the name of the recipient recorded by the coordinator), no copies are to be made of the transcript.

2.     The evidence given must not be divulged to any person not present at the hearing of the evidence, except to the experts mentioned in par (b) of Order 2 in accordance with its provisions, and must not be used for any purpose other than for the purpose of this proceeding or any appeal.

3.     At the conclusion of the matter (including any appeal) the records of evidence, whether transcript, computer disk or tapes, be delivered up by the respondents to the solicitors for the applicants. Liberty to apply, without onus, in this connection.

…

17 The material parts of the 2003 orders are as follows:

1.    A session of gender restricted evidence will be held on 2 July 2003 at a location within the Broome area.

2.    Save for Aboriginal men, the persons present at the session of evidence referred to in paragraph 1 be restricted to:

Justice Robert French

Mr N. Pannell (court officer)

Mr G. Donges (transcriber)

Mr K. Bell QC (senior counsel for the Applicants)

Mr G. Irving (junior counsel for the Applicants)

Mr T. Creewel (junior counsel for the State of Western Australia)

Professor Basil Sansom (anthropological adviser for the State of Western Australia)

Mr Ken Pettit (senior counsel for the Commonwealth of Australia)

Mr A. Rorrison (junior counsel for the Commonwealth of Australia)

Mr P. Quinlan (counsel for the Western Australia Fishing Industry Council, LM Brown (Cygnet Bay Pearls) and Blue Seas Pearling).

3.    The permission granted in paragraph 1 is conditional upon the persons to be present at the giving of the evidence, other than the trial judge, giving an undertaking to the Court not to disclose the content of the evidence given to any other person.

4.    The transcript of the evidence, and audio and electronic records of the evidence from which the transcript is made, be made separate from the general transcript and records. The transcript be printed on paper of a different colour from that of the general transcript, but paginated chronologically with the general transcript. The transcript must not be transmitted or otherwise dealt with by email.

5.    The transcript of the evidence have a covering sheet clearly marked with the date of the hearing at which the evidence was given and the words “Gender Restricted Evidence - This transcript records evidence by Aboriginal men concerning matters that by Aboriginal tradition must not be revealed to persons other than initiated adult males. This transcript must not be viewed by persons other than those present at the time of this hearing”.

…

7.    Save for the copies for the Court and for each person present at the hearing of the evidence (which copies should be numbered and the name of the recipient recorded), no copies are to be made of the transcript.

8.    The evidence given must not be divulged to any person not present at the hearing of the evidence and must not be used for any purpose other than for the purpose of the proceeding or any appeal from the proceeding.

9.    At the conclusion of the matter, including any appeal, the records of the evidence, whether transcript, computer disk or tapes be delivered up to the solicitors for the applicants.

…

18 The Court has created an online file for this application, and copies of the full GRE orders can be located in that online file.

The Evidence

19 The application was supported by the affidavit (mentioned above) of Andrew William Sampi, affirmed on 17 July 2025. He states that he is:

(a)    a senior, initiated, man in accordance with Bardi and Jawi Law;

(b)    a native title holder over Bardi and Jawi land following the decisions in Sampi on behalf of the Bardi and Jawi People v State of Western Australia (No 3) [20[0]5] FCA 1716 and Sampi on behalf of the Bardi and Jawi People v State of Western Australia (No 2) [2010] FCAFC 99; and,

(c)    a director of the [RNTBC].

20 For present purposes, the key passages from Mr Sampi’s affidavit are as follows:

6.    I remember that during the native title claim and the trial, some Bardi and Jawi people gave evidence to the Court to have our native title recognised. Some of this evidence came from senior men and the anthropologist Geoff Bagshaw, who gave evidence about Ngulungul things, our secret men’s business. I call this the Men’s Evidence.

7.    I remember my Nyami (mother’s father) asked the judge to make sure that the judge and the lawyers came to us to hear our Men’s Evidence on country, and that the transcripts of when the Men’s Evidence was given were protected.

…

9.    The lawyer from the KLC told me that there were lots of orders that restricted who could be there when the Men’s Evidence was given, and who could see the transcript. …

11.    The lawyer from the KLC has explained to me that these orders mean that even Bardi and Jawi initiated men, like me, cannot look at the transcript of the Men’s Evidence if we were not there when it was given.

12.    The lawyer from the KLC has explained to me that even though they have some of the Men’s Evidence transcripts in boxes in their office, they are not allowed to look at those transcripts and they are not even allowed to show them to an initiated Bardi and Jawi man like me, because I am not named on the orders.

…

14.    As a director of the RNTBC, and senior initiated Bardi and Jawi man, I want to be able to manage our own cultural information and make decisions about who can access it. We believe that the RNTBC should have control over the Men’s Evidence and this is why we have asked the KLC to make an application to the Court to vary the orders.

15.    I know it would’ve been hard for my Nyami to tell the Court about these things. I believe my Nyami would want us to make decisions about this information the cultural way. I don’t think he wanted to stop initiated Bardi and Jawi men from seeing their own cultural information. These are our things to speak about. These things are our business to decide who can hear about them.

21 The application was also supported by two affidavits of Meredith Kate Brown, affirmed 14 October 2025 and 5 December 2025. Ms Brown identifies herself as the lawyer at the KLC “with day-to-day carriage of this matter”. The first of her affidavits sets out some of the history of the proceeding, identifies the relevant orders, and deals with various other procedural matters. She also gives an account of why, from the perspective of the KLC, the RNTBC has made this application:

9.    I am informed by Ms Hana McDonald, an Anthropologist employed by the KLC, that in approximately February 2024, the RNTBC requested that KLC provide to the RNTBC the ethnographic and cultural materials collected by the KLC from the Bardi Jawi in preparation for and during the Proceeding (the native title materials).

10.    From my discussions with senior Bardi Jawi elders, such as Mr Andrew Sampi, I understand this request to be consistent with a desire that the Bardi Jawi people, with the assistance of the RNTBC, be permitted to manage their own cultural information and to make decisions about access thereto.

11.    As a result, KLC staff are in the process of identifying and returning the native title materials to the RNTBC. This process is informed by current best practice and jurisprudence on the ownership, and other rights and interests in relation to, claim materials.

22 Ms Brown deposes that the KLC believes the GRE orders prevent it from reviewing the material it currently holds and returning any material to the RNTBC, where that material is subject to the orders.

23 The second of Ms Brown’s affidavits sets out information concerning the passing of the members of the applicant in this proceeding (which is discussed further below), the giving of the instructions by the RNTBC to the KLC to make this interlocutory application, and the composition of the RNTBC’s board of directors.

24 Two other affidavits were read on the application. One, the affidavit of Justine Mary Toohey, affirmed 25 November 2026, sets out the KLC’s various roles, including as a representative body and legal aid provider, and also describes some of the procedural history of the proceedings in respect of both it and the RNTBC. The other, the affidavit of Phillip James Walton Ramsay, affirmed 13 February 2026, annexes a copy of the RNTBC’s Rule Book.

The PARTIES’ SUBMISSIONS

25 All parties submitted the Court had power to make the orders sought. Various provisions were nominated: the RNTBC, whose submissions on this point were adopted by the State, submitted that various provisions in Pt VAA of the F ederal C ourt of A ustralia Act 1976 (Cth) – specifically, ss 37AF(1)(b)(i), 37AG(1)(a) and 37AH(1) and (3) – jointly empowered the Court to make the orders sought; the Commonwealth, by contrast, appeared to focus its submissions on the more general powers in s 23 of the FCA Act and rr 1.32 and 39.05(c) of the F ederal C ourt Rules 2011 (Cth), although it, too, made reference to essentially the same provisions in Pt VAA of the Act. By analogy, the parties pointed to previous decisions in Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651, Booth on behalf of the Gunaikurnai People Claim Group v State of Victoria (No 3) [2020] FCA 1143 and Booth on behalf the Gunaikurnai People Claim Group v State of Victoria [2022] FCA 1395.

26 All parties submitted the orders were appropriate. The main points made were that: (a) the purpose of the GRE orders was to prevent the prejudice to the administration of justice that would have arisen if the Bardi and Jawi men had been required to give evidence about the Ngulungul without any such orders being in place; (b) the purpose was not to prevent, forever, culturally-appropriate access by the Bardi and Jawi to that evidence; and (c) subject to the below, that it was appropriate for the RNTBC to be entrusted with the evidence.

27 The main area of disagreement in the parties’ submissions relates to suggestions made by the State and the Commonwealth about an additional qualification on the orders. The State and the Commonwealth adopted slightly different positions, but each made the point that the Court’s orders should contain some kind of direction to the RNTBC about the future use and disclosure of the restricted evidence. The RNTBC, in reply, opposed any such orders.

The KLC’s submissions

28 The KLC’s submissions were limited to addressing the appropriateness of the RNTBC having made the interlocutory application without seeking the consent of the Bardi and Jawi common law holders. The KLC submitted that such consent was neither necessary or appropriate because: (a) the RNTBC was the most appropriate person to make the application; (b) under the traditional law and custom of the Bardi and Jawi, it was not appropriate for such a decision to be made by all common law holders (as opposed to only senior and authoritative men); and (c) the decision to make the application was not a “native title decision” for the purposes of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

CONSIDERATION

The orders sought are within the power of the Court

29 Both the 2001 orders and the 2003 orders, as well as all the variations to them, were made under s 50 of the FCA Act, read with s 17(4) of the FCA Act.

30 In the context of the hearing and determination of a claimant application under the NTA, those powers need to be read with the terms of s 82(2) of the NTA, which provides:

Concerns of Aboriginal peoples and Torres Strait Islanders

(2)    In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.

31 As the RNTBC submitted, neither s 17(4) of the FCA Act nor s 82 of the NTA have been amended in any material way since the orders were made. Section 50 of the FCA Act was, however, repealed in 2012, and replaced by a more detailed regime in Pt VAA of the FCA Act including, relevantly for present purposes, ss 37AF and 37AG.

32 Taking into account the high threshold of the test in s 37AG, it is inherent that the Court will have power to revoke, amend or vary a suppression order if, on evidence presented to the Court, the Court is satisfied the order is no longer “necessary” for one of the purposes set out in s 37AG: see Hogan at 29. While this decision relates to the former s 50, no different principle applies.

The orders sought are appropriate in the circumstances

33 All active parties agreed that it was necessary to avoid prejudice to the administration of justice for there to continue to be some form of suppression orders over the men’s gender restricted evidence. In a general sense, I accept the KLC’s submissions that it was appropriate for the RNTBC to bring this application without seeking the consent of all of the common law holders.

34 The RNTBC submitted that the Court’s reasons for the 2001 orders do not suggest that a purpose of the orders was to prohibit Bardi and Jawi men from having access, and the ability to control access, to these written records of their own culture. As counsel submitted during the hearing, the purpose was, indeed, quite the opposite: to recognise and preserve the effect of Bardi and Jawi traditional law and custom as much as practicable in the (foreign) circumstances of a trial in the Australian legal system.

35 Aspects of that purpose have been served and are at an end, after the trial and appeal concluded, and a final determination was made. However, other aspects of that purpose continue. The aspects which continue are the need to ensure that First Nations Peoples have confidence in the judicial system – especially, but not only, in the native title jurisdiction – and have confidence that, wherever practicable, their traditional law and custom will be respected and protected. In that way, they can be confident to engage freely and openly with the judicial system so as to advance their rights and interests and seek to have the Australian legal system protect them. They can have confidence that there is no need to exchange the solemn and vital aspects of their traditional law and custom as the price to be paid for, in this instance, seeking recognition of native title. No such unfair bargain need be struck.

36 Nevertheless, amendments to the orders are appropriate, precisely to allow Bardi and Jawi traditional law and custom to continue to be applied to the evidence and material adduced in this trial by those who should be in control of the information contained in that evidence. As the RNTBC submitted, now that the legal proceedings have been finalised, the unqualified prohibition on access to the transcript by “any person not present at the hearing of the evidence” – subject only to specific exception in other subsequent orders – is no longer necessary to avoid prejudice to the administration of justice.

37 This is an example of a kind of suppression order that, as the legislative scheme contemplates, should operate for a limited timeframe. Thereafter, the Court should expect and, in my respectful view, encourage the kinds of applications made in this proceeding.

38 That is because native title claimant applications are in a category of their own amongst litigated proceedings. They are, truly, neither the product of public nor private law. They are the product of recognition of different, ongoing legal systems which the common law recognises and protects and which now, by statute, is also recognised and protected. Not a single legal system, it must be emphasised, but a series of legal systems, based in land and sea country, around Australia.

39 The adducing of evidence of traditional law and custom in a native title claimant application is not for the purposes of the enforcement of rights and interests but is instead for the purposes of obtaining recognition of the way a legal system much older than the Australian legal system gives rise to, allocates and perpetuates rights and interest in land and in the sea.

40 The same is true, in my opinion, for compensation applications.

41 In that sense, the giving of evidence of traditional law and custom, especially evidence around which there are rules about disclosure, and holding of knowledge, should not interfere or disrupt the normative operation of traditional law and custom any more than is necessary to achieve the purpose of seeking recognition of native title. In my opinion, that means the natural and primary place for the continued collection and storage of this knowledge, even if not disclosed in traditional forms, is with the communities to which it belongs, and whose lives are regulated by it.

42 In this way, the Australian justice system can enhance the respect and protection of the systems of law and custom which colonisation sought to disrupt.

43 First Nations Peoples are rebuilding governance systems all around Australia. Two examples are the governance structures of the Gunditjmara People of southwest Victoria and the Ngarrindjeri people of southeast South Australia: see generally Dziedzic A and McMillan M, “Australian Indigenous Constitutions: Recognition and Renewal” (2016) 44(3) Fed L Rev 337. Another is the recent treaty concluded in Victoria: see Statewide Treaty Act 2025 (Vic) and Galloway K, “Victoria’s Treaty Bill and the Evolution of Lawmaking in a Westminster Democracy” (2025) 50(4) Alt LJ 249.

44 In the case of the Gunditjmara, their governance structures include the relevant RNTBC that holds the native title on trust for the Gunditjmara People. This kind of rebuilding is an aspect of self-determination for First Nations Peoples. Dziedzic and McMillan explain (at 349-350) (footnotes omitted):

Oral cultures regulate the generation, management and transmission of knowledge, including constitutional knowledge: there are rules about who may communicate certain stories and to whom; who may access certain places; who may know certain histories and relationships. These restrictions create hierarchies of knowledge, where certain individuals are entrusted with the knowledge and so have authority over the meaning and interpretation of stories and, by extension, the law. The system works because people accept the authority of those who hold the knowledge, without necessarily knowing the inner meanings and details themselves. The rules regarding the transmission of knowledge thus serve to maintain the superiority and authority of the law. They are not unlike the special rules of constitutional amendment, which seek to preserve the superior status of a written constitution.

45 In dealing with questions of the kind raised by this interlocutory application, and when considering whether orders are appropriate, I take into account Australia’s (eventual) endorsement in 2009 of the 2007 U nited N ations D eclaration on the R ights of I ndigenous P eoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007), and in particular articles 4 and 31.

46 Article 4 provides:

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

47 Article 31 provides:

1.    Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

2.    In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

48 While Australia has not adopted or implemented UNDRIP into domestic law (cf the Canadian United Nations Declaration on the Rights of Indigenous Peoples Act 2021, s 5(g) of the Canadian Indigenous Language s Act 2019, s 8(c) of the Canadian An Act r especting First Nations, Inuit and Métis children, youth and families 2019, and see generally Wood C, “Protecting Indigenous Rights at Home: A Comparative Analysis of the Way Forward for Domestic Implementation of the United Nations Declaration on the Rights of Indigenous People” (2020) 27 Aust ILJ 77), these are solemn objectives that Australia has committed to in international forums. Whether or not the terms of this instrument can be used in an interpretative sense when construing domestic legislation (cf Maloney v The Queen [2013] HCA 28; 252 CLR 168 at 235), they are relevant to the Court’s consideration on this application of whether orders are, or are not, appropriate to be made.

49 The orders the Court has made today are orders that strike a balance between the ongoing necessity for restricting access to the Ngulungul, and – amongst other matters – the facilitation of the objectives of Art 31 of the UNDRIP, read in the context of Art 4.

50 In this regard, another point made by Dziedzic and McMillan (at 357-358) has force in the current context. That is, although the need to restrict access to the Ngulungul in Bardi and Jawi traditional law and custom is fully acknowledged, the form those restrictions take must adapt and take account of contemporary circumstances and future needs (footnotes omitted):

The view, sometimes expressed, that only ‘traditional’ Indigenous laws and practices are authentic, and that forms of governance influenced by western forms are inauthentic, is highly problematic. It assumes that Indigenous cultures are ‘frozen in time’, when in fact they are and have always been complex and fluid. It denies Indigenous cultures a fundamental characteristic of constitutionalism, that is, the capacity to adapt and change. European colonisation was a particularly disruptive event and imposed radically different conditions to which Indigenous legal systems had to adapt. … These examples show that where traditional forms of governance are no longer feasible, Indigenous nations find innovative ways to continue significant aspects of their constitutions in an altered form that still expresses the underlying constitutional values of the nation.

51 The oral handing down of traditional law and custom, and knowledge such as Ngulungul, continues, as Mr Andrew Sampi’s affidavit evidence makes clear. However, the need to preserve and protect the new ways in which that knowledge has had to be shared and disclosed is something that requires innovation and adaptation. The Bardi and Jawi have, through their RNTBC and this application, demonstrated their commitment to adapting to meet those needs.

The qualifications suggested by the State and Commonwealth

52 For these reasons, not only are the suppression orders appropriate, but the addition of the kinds of qualifications initially suggested by the State and the Commonwealth are not appropriate.

53 Relevantly, the RNTBC’s interlocutory application was for the GRE orders to:

be varied to permit:

d.    a male employee of the [KLC] to access, review, and provide to the RNTBC, any gender restricted evidence held by the KLC; and,

e.    the RNTBC to store, access, use, and disclose the gender restricted evidence to another person, on such conditions and for any purpose deemed appropriate by the RNTBC.

54 The State proposed adding the words “in accordance with Bardi and Jawi traditional law and custom” at the end of paragraph (e). Among other changes suggested by the Commonwealth, it relevantly proposed adding the words “in accordance with the traditional law and custom of the Bardi and Jawi people” at the end of that paragraph.

55 Quite properly, during the hearing neither the State nor the Commonwealth presented a fixed view on whether such a qualification was necessary. Ultimately, when further orders were proposed by consent, neither the State nor the Commonwealth pressed for these qualifications.

56 As the RNTBC submitted in reply, adding those words would draw the Court into an evaluation and determination of when the RNTBC was and was not acting in accordance with Bardi and Jawi traditional law and custom. That is not an appropriate function for the Court to perform in these circumstances. The RNTBC is, on the evidence, developing a protocol around access to the information. The RNTBC is clearly one body with some governance responsibilities who may be in a position to design a protocol. However, the RNTBC acts in a fiduciary capacity for the common law holders of native title, so due regard will need to be paid to the limits of the RNTBC’s functions in this respect. None of these are presently matters that the Court should become drawn into by reason of any proposed qualifications on the suppression orders.

The form of orders

57 During the hearing, the cascading effect of a considerable number of amendments to the GRE orders, generally creating exceptions for other individuals to access the evidence, became apparent. It was unclear whether the parties’ diligent searches had uncovered all existing orders. There was also the question of why the original form of existing orders – focussing on disclosure to those present while evidence was given – needed to be preserved, but varied when the native title claimant application had been finally determined. These issues arose in the context of the express legislative qualification in s 37AJ(2) that a suppression order should only operate “for no longer than is reasonably necessary to achieve the purpose for which it is made”. While that qualification was not expressly present in s 50, being the power under which the GRE orders were made, in my view since that qualification binds the Court as it makes any kind of suppression order today, the Court should have regard to that aspect of Parliament’s intention about suppression orders.

58 The Court raised whether another option might be to set aside all the existing suppression orders (and their variations), and re-make the orders in a way which reflects both the ongoing purpose of the original orders (insofar as that purpose continues) and the new purpose of facilitating access by the Bardi and Jawi, and the RNTBC.

59 The parties were given time after the hearing to confer and try to reach agreement on a new proposed set of orders. An agreed set of orders was provided to the Court on 24 April 2026. Aspects of those orders were in similar terms to the orders made by the Court today. The Court’s orders do, however, depart from the parties’ proposed orders in some material ways.

60 Specifically, the parties proposed replicating many of the kinds of orders that were made in the 2001 orders and the 2003 orders, such as requiring that the transcript of the evidence be kept and marked in certain ways, and continuing to allow for the evidence to be divulged to certain named people, such as counsel and Court staff who were present when the evidence was given.

61 In my opinion, those orders can no longer be described as “necessary” within the accepted meaning of that term in s 37AG of the FCA Act. The hearing process is concluded, and none of the named persons should have any reasonable cause to need to look at the information again. The Court no longer operates a paper file, and has not done so since 2014. All its records are in the process of being digitised. The manner in which material subject to suppression orders is stored, and is able to able accessed in accordance with suppression orders, is well established in the Court’s digital court record processes. The orders made today will be subject to that regime.

62 The form of orders made centres on the RNTBC being the body which will provide authorisation to individuals to access the material. I have referred above to the protocol being developed by the RNTBC. Order 3 is the mechanism intended to regulate who has access to the material, and whose authorisation is needed. I have inferred that in this form of order, which is substantially based on what was provided by the parties, the intention is that Bardi and Jawi men will be authorised by the RNTBC.

63 Aside from the kind of access contemplated by this interlocutory application, there is no other apparent purpose that any person should need access to this material. If a third party does seek such access, they can make an interlocutory application in the usual way and it will be considered, after notice to the RNTBC and the KLC.

64 Two further points should be made. First, orders of this kind do not prevent court officials from performing functions or exercising powers in a public official capacity: s 37AK. So, when Federal Court staff are assisting with, or facilitating access to, the material for the purposes of (for example) inspection by the KLC, they do not need to be expressly included in these orders. Relying on s 37AB, Order 6 modifies the operation of this provision to respect the rules that women and children should not see this material.

65 Second, the effect of suppression orders is not limited to parties and participants in a proceeding, but extends to all persons unless exempted by the orders themselves. Contravention of a suppression order is an offence punishable by imprisonment, and can also be punished as a contempt of court: s 37AL. Both consequences are very serious. Therefore, it is always critical that suppression orders are clearly and plainly expressed, so that all those bound by them understand the effect of the orders and the consequences if they are contravened. This is another reason that setting the GRE orders aside and re-making orders appropriate for the present circumstances, is a more appropriate course for the Court to take.

66 Finally, there was discussion at the hearing that it may be appropriate for the title of the proceeding to be amended to reflect the fact that all members of the applicant have passed away. This has been done in other native title proceedings. There is no difficulty with such an order being made in the original proceeding which is the subject of the interlocutory application. The appeal proceeding (WAD 188 of 2006) is not before the Court. While the terms of s 25(2B)(ab) of the FCA Act might suggest there is power in any single Judge to make such an order in the Full Court proceeding, on reflection I am not persuaded it is appropriate to make such orders in either proceeding. There are a large number of native title proceedings where the moving applicant or applicants have passed away. While the fact of the passing of all members of the applicant in this proceeding was a matter taken into account on the interlocutory application, that does not mean such an order should be made. For all the Court knows, there could be members of the Bardi and Jawi communities who might prefer that such a description not be added to the proceeding title. Ultimately, I decided not to make this order, even though I had raised this issue.

Whether any other orders were required

67 There was some discussion at the hearing whether further or other orders might be required to deal with the fact that all members of the applicant in the proceeding have passed away, and that this application is made by a non-party to the proceeding, the RNTBC.

68 It was common ground amongst the active parties that so long as the Court was satisfied the RNTBC had standing to apply for the kind of orders sought, it was not necessary for the RNTBC to be joined as a party. I accept that submission. Suppression orders are in their terms and effect generally directed at both parties and non-parties. Applications to set aside or vary such orders may therefore be made by non-parties, provided those non-parties can demonstrate that their interests are affected by the orders in their current form.

69 So much is apparent from the terms of s 37AH(1)(b) itself. Further, s 37AH(3) makes it clear such the power under Pt VAA continues after a proceeding has concluded: see generally Booth (No 3) at [29]-[32]. I accept the RNTBC submission that the present circumstances give the RNTBC more direct standing, as it is the trustee for the common law holders of the rights and interests the subject of the Sampi Determination.

70 It was also common ground that it was unnecessary for the Court to consider the somewhat complex question of whether a RNTBC is properly characterised as a “successor” to a native title claim applicant, as part of the consideration about whether a RNTBC has standing to bring an application: cf Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551, [34]. In this case, and in contrast to Yinhawangka Gobawarrah, the fact that the orders in question are suppression orders which in their terms affect third parties, means this issue need not be considered.

71 However, since the matter was before the Court, and given the evidence about there no longer being any members of the applicant who are alive, I did consider it appropriate to amend the title of the proceeding to reflect this fact. The active parties agreed with that proposal.

Other matters

72 I deal briefly with three other matters.

73 First, the other material aspect of the RNTBC’s interlocutory application was that the Court dispense with the requirement in r 17.01(2) of the FC Rules that it “serve the interlocutory application and any accompanying affidavit on any other party at least 3 days before the date fixed for the hearing”. In her affidavit of 14 October 2025, Ms Brown refers to some of the parties who were respondents during the course of the proceeding, and then states:

31.    At an earlier stage in the Proceeding, there appear to have been further respondents to the claim. Given the passage of time, it is difficult to identify when these respondents were joined, or ceased to participate in, the Proceeding.

32.    In light of the resources that would be required to identify and contact each of these parties, and in circumstances where the GRE Orders cannot be said to have protected any interest enjoyed by these parties, the RNTBC has applied for an order dispensing with service on any party other than the First and Second Respondents.

74 In those circumstances, it is appropriate to make an order of the kind sought.

75 Second, before the hearing of the interlocutory application, an enquiry was made as to whether I would be assisted by a separate appearance at the hearing by the KLC. I indicated to the parties that I would only be assisted by the KLC appearing (as amicus curiae) if it considered that there might be matters that it would be able to raise and that were unlikely to be addressed by the parties (or that it might address in a different way to the parties). In response, the KLC, by its Principal Lawyer, indicated that it did not seek leave to appear as amicus.

76 Finally, the parties agree that there should be no order as to costs. I agree with the parties.

| I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Mortimer. |
Associate:

Dated: 27 April 2026

SCHEDULE OF PARTIES

| | WAD 49 of 1998 |
| Applicants | |
| Fourth Applicant: | ROSIE BIN SALI |
| Fifth Applicant: | ELIZABETH PUERTOLLANO |
| Sixth Applicant: | TOM WIGGAN |
| Seventh Applicant: | LENA STUMPAGEE |
| Eighth Applicant: | KHAKI STUMPAGEE |
| Ninth Applicant: | DENNIS DAVEY |
| Tenth Applicant: | PETER SIBOSADO |
| Eleventh Applicant: | JIMMY EJAI |
| Twelfth Applicant: | MARCIA ANGUS |