Yarmirr, Mary & Ors v The Northern Territory of Australia & Ors [1997] FCA 274

Yarmirr, Mary & Ors v The Northern Territory of Australia & Ors [1997] FCA 274

The Court does not have legislative power to restrict a party's legal representation by reference to gender, nor to exclude a party from the hearing based solely on gender, nor require the public or legal representatives to apply for a permit to attend. Restrictions on attendance and publication of evidence may only be imposed to the limited extent justified by cultural concerns, with exclusion of female members of the public granted for the specified sitting based on current material. Orders for cross-examination timing and evidence summaries are justified by applicants' failures to file particulars and witness statements.

Jurisdiction
Australia
Judgment Date
15 April 1997
Procedural Posture
Application for Determination of Native Title / Directions Hearing and Interlocutory Orders
Outcome
Interlocutory orders made; applications for broader gender-based exclusions refused except for exclusion of female members of the public from the specified Court sitting; other procedural orders granted.
Legal Topics
['court Procedures Under Native Title Act' 'representation Rights' 'restrictions on Evidence' 'cultural/customary Concerns in Evidence' 'open Justice' 'site Visits and Access to Court Hearings']
['native Title' 'practice and Procedure'] ['court Procedures Under Native Title Act' 'representation Rights' 'restrictions on Evidence' 'cultural/customary Concerns in Evidence' 'open Justice' 'site Visits and Access to Court Hearings']

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Procedural Posture

Application for Determination of Native Title / Directions Hearing and Interlocutory Orders

Legal Issues

  1. 1 ['Whether cross-examination of lay witnesses should be delayed until completion of their evidence' 'Whether hearing should be restricted to lawyers and consultants of the same gender as witnesses' 'Whether publication and communication of evidence should be restricted to persons of the same gender as witnesses' 'Whether the Court has power under s82(2) Native Title Act 1993 to deny a party the right to be represented by a lawyer of their own choice' 'Whether a party may be excluded from Court hearing' 'Whether the public or specified persons may be excluded from Court hearing' 'Whether members of the public should be required to apply for permission to enter Aboriginal land for hearing']

Ratio Decidendi

The Court does not have legislative power to restrict a party's legal representation by reference to gender, nor to exclude a party from the hearing based solely on gender, nor require the public or legal representatives to apply for a permit to attend. Restrictions on attendance and publication of evidence may only be imposed to the limited extent justified by cultural concerns, with exclusion of female members of the public granted for the specified sitting based on current material. Orders for cross-examination timing and evidence summaries are justified by applicants' failures to file particulars and witness statements.

Court Disposition

Interlocutory orders made; applications for broader gender-based exclusions refused except for exclusion of female members of the public from the specified Court sitting; other procedural orders granted.

Orders

  • ['Applicants to file and serve evidence summaries for upcoming witnesses by deadline' 'Respondents may cross-examine applicants’ witnesses only after conclusion of all such evidence, not before specified date' 'No restriction on attendance of female parties, counsel, solicitors, or Court staff during specified...